A.E.B. challenges her adjudication of delinquency for Criminal Trespass as a Class D felony. See footnote A.E.B. contends that the juvenile court erred when it allowed the State to amend the charging information on the day of her hearing and the State failed to present sufficient evidence to establish that she committed criminal trespass. A.E.B. also contends that the juvenile court erred when it imposed a parental participation order without a petition being filed and when it imposed fees without conducting an indigency hearing.
We find that by failing to ask for a continuance after her objection was overruled, A.E.B. waived the issue concerning the States amendment of the pleading. We also find that there is sufficient evidence to show that she committed criminal trespass. However, we find that the juvenile court did not have proper jurisdiction to issue a parental participation order without a petition first being filed. We also find that the court erred when it ordered A.E.B. to pay costs. Therefore, we affirm in part, reverse in part, and remand with instructions to hold an indigency hearing.
The facts most favorable to the judgment show that on October 23, 2000, A.E.B. received a suspension for five days from Indianapolis Public School (IPS) #110, Julian Coleman Middle School, with a recommendation for expulsion. At the time A.E.B. received this October suspension, the school did not allow her to immediately leave the school premises. A.E.B. was 14 years old and lived two miles from Coleman Middle School. Because there is no mid-day bus service from the Coleman Middle School, the school does not allow a suspended student to leave the building until the end of the school day unless a parent is contacted to pick up the student. The school sent a notice regarding the suspension to her father, I.V. Brown.
While A.E.B.s suspension only ran until November 1, Assistant Principal Claritha Tookes informed A.E.B. to stay out of school until she heard from the IPSs downtown office regarding her expulsion. When a student is recommended for expulsion, the proper paperwork is forwarded to IPSs downtown office. The downtown office then appoints a hearing officer within five days and the student is notified of the hearing time. Despite Tookess instruction to stay out of the school until receiving notice from the downtown office, A.E.B. returned to Coleman Middle School after the conclusion of her five-day October suspension.
On November 17, 2000, A.E.B. was again suspended pending expulsion, and the school sent another notice to Brown. According to the November Notice of Suspension from School Attendance Pending Further Proceedings for Expulsion, A.E.B. was suspended from attendance at Coleman Middle School for 5 school days beginning on Tuesday, November 17, 2000, through and including Monday, November 27. [P]ending expulsion. Exhibits P.1. On November 28, Brown sent A.E.B. back to school.
Once at school, A.E.B. went to several classrooms and verbally insulted the teachers. Police Officer Averitte Sheroan, who was assigned to Coleman Middle School, confronted A.E.B., told her that she was not supposed to be in the school building, and escorted her to the schools office to determine if she was actually on suspension. A.E.B. became loud and refused to be quiet after Officer Sheroan asked her to stop. After conferring with the principal, Officer Sheroan told A.E.B. to leave the school building or she would be arrested for trespassing and disorderly conduct. A.E.B. refused to leave unless she was able to talk to her nephew who also attended the school. Officer Sheroan then arrested her and placed her in handcuffs. It was only after she was arrested that A.E.B. asked to call her father.
On January 3, 2001, the State filed a petition alleging that A.E.B. was a delinquent child for committing the acts of Criminal Trespass as a Class D felony if committed by an adult and Disorderly Conduct as a Class B misdemeanor if committed by an adult.See footnote The court held the fact-finding hearing on March 16, 2001. On the day of the hearing, the State amended the petition over A.E.B.s objection to include Criminal Trespass that results from refusing to leave after being told to do so. Tr. P.1-2. The court found A.E.B. to be a delinquent child for having committed both offenses. On April 16, 2001, the court issued a suspended commitment to the Department of Corrections, ordered A.E.B. to complete 40 hours of community service, ordered her to pay probation fees and a $50 public defender fee, and waived docket fees if A.E.B. received Cs or above on her next report card. The court also issued a parental participation order for Brown. This appeal then ensued.
On appeal, A.E.B. raises four arguments. First, she argues that the juvenile court erred by allowing the State to amend the charging information on the day of her hearing. Next, she claims that State failed to present sufficient evidence to establish that she committed criminal trespass. A.E.B. also asserts that the juvenile court erred when it imposed a parental participation order without a petition being filed. Finally, A.E.B. argues that the court erred when it ordered her to pay costs without holding an indigency hearing. We address each argument in turn.
First, A.E.B. claims that the court erred by allowing the State to amend the delinquency petition on the day of hearing. The original language on the petition alleged that A.E.B. committed Criminal Trespass as a Class D felony when she not having a contractual interest in the property did knowingly or intentionally enter the real property of IPS School #110 . . . after having been denied entry by school administrators. Appellants App. P.10. On the day of A.E.B.s hearing, the State amended, over A.E.B.s objection, the petition to include criminal trespass that results from refusing to leave after being told to do so. Appellants App. P.10. A.E.B. alleges that this was a substantive amendment that changed the defenses that may have been available to her.
We find that A.E.B. has waived this issue for appeal. While A.E.B. objected to the amendment at the time the State proposed it, she did not ask for a continuance after the amendment was granted. Once a defendants objection has been overruled, she should request a continuance. Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996). Failure to request a continuance after objecting to an amendment to the charges, results in waiver of that issue for appeal. Id. A.E.B. had the opportunity to request a continuance after she objected to the amendment and chose not to pursue that course. Therefore, A.E.B. has waived this issue for appeal.
A.E.B. challenges the sufficiency of the evidence supporting her adjudication of delinquency for an act which, had it been committed by an adult, would have constituted Criminal Trespass as a Class D felony. Specifically, A.E.B. alleges there was insufficient evidence to prove that she did not have a contractual interest in the property because she was a student at the school. A.E.B. also alleges that she lacked the requisite criminal intent because she was unable to leave the school after she was asked to leave the school property. When the State seeks to have a juvenile adjudicated to be delinquent for committing an act that would be a crime if committed by an adult, the State must prove every element of that crime beyond a reasonable doubt. Al-Saud v. State, 658 N.E.2d 907, 908 (Ind. 1995). Upon review, we apply the same sufficiency standard used in criminal cases. Id. at 909. When reviewing the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. D.R. v. State, 729 N.E.2d 597, 599 (Ind. Ct. App. 2000). Instead we look only to the evidence of probative value and the reasonable inferences that support the determination. Id.
A person commits Criminal Trespass when (1) not having a contractual interest in the property, (2) she knowingly and intentionally refuses to leave the real property of another person, (3) after having been asked to leave by the other person or that persons agent. Ind.Code § 35-43-2-2(a)(2); Woods v. State, 703 N.E.2d 1115, 1117 (Ind. Ct. App. 1998). The offense is a Class D felony if it is committed on school property. I.C. § 35-43-2-2(a).
A.E.B. insists that she could not have committed criminal trespass because as a student at Coleman Middle School she had a contractual interest in the property. We have held that a contractual interest as it is used in the criminal trespass statute, refers to the right to be present on anothers property, arising out of an agreement between at least two parties that creates an obligation to do or not to do a particular thing. See Woods, 703 N.E.2d at 1117. A.E.B. maintains that the education clause found in Article 8, Section 1 of the Indiana Constitution, See footnote coupled with Indianas compulsory school attendance lawSee footnote provides her with a contractual interest in the school property. Even assuming that A.E.B.s claim is correct, we find that A.E.B. violated whatever contract existed when she interfered with the educational activities at Coleman Middle School to the point where she committed the crime of disorderly conduct.
According to Officer Sheroans testimony, before A.E.B. was asked to leave the school building, she was going from classroom to classroom, disrupting the classes, cursing the teachers, and making a loud noise after she was told to stop. The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. Grody v. State, 257 Ind. 651, 657, 278 N.E.2d 280, 284 (1972) (quoting Adderly v. Florida, 385 U.S. 39, 47 (1966)). The administration of Coleman Middle School had the power to request that A.E.B. leave the school property after she began to interfere with the educational activities to such an extent as to be guilty of the crime of disorderly conduct. A.E.B. did not have a contractual interest to remain on school property in order to disrupt the educational environment and to break the law. By committing the crime of disorderly conduct on school property, A.E.B. abandoned whatever contractual interest she had in the school property. Thus, we find that there was sufficient evidence to show that A.E.B. did not have a contractual interest in the school property when she was asked to leave the premises.
A.E.B. also alleges that she lacked the requisite intent to commit criminal trespass. A.E.B. contends that she refused to leave the school property because she was 14 years old, lived two miles from school, and was unable to leave the school unless she waited until the bus took her home at the end of the day or her father came to the school to get her. A.E.B.s claim is that she believed she had a right to be on the property because she thought that she was physically unable to leave the school premises after she was told to do so. The belief that one has a right to be on the property of another will defeat the mens rea requirement of the criminal trespass statute if it has a fair and reasonable foundation. Olsen v. State, 663 N.E.2d 1194, 1196 (Ind. Ct. App. 1996). It is for the trier of fact to determine whether the defendant believed that she had a right to be on the property of another and whether that belief had a fair and reasonable foundation. Myers v. State, 190 Ind. 269, 269, 130 N.E. 116, 117 (1921). A.E.B.s argument is essentially a request for us to reweigh the evidence to conclude that her belief that she could stay on the school property had a fair and reasonable foundation, this we cannot do.
The State presented sufficient evidence to show that A.E.B.s refusal to leave the property was not based on a belief that she was incapable of leaving the school. According to Officer Sheroans testimony, after he told A.E.B. repeatedly that she must leave the school property, A.E.B. responded that she would not leave until she talked to her younger nephew who was a fellow student at the school. Officer Sheroan later testified that A.E.B. did not even ask to call her father until after she was arrested for disorderly conduct and refusing to leave school property. There were sufficient facts presented from which the court could find that A.E.Bs refusal to leave was based on her intent to talk to her nephew, not out of a fear or inability to travel back to her home. A.E.B.s desire to talk with her nephew did not provide a fair and reasonable foundation for her belief that she had a right to be on school property after she was asked repeatedly to leave. Therefore, we conclude that there was sufficient evidence supporting A.E.B.s adjudication of delinquency for an act that would have constituted criminal trespass had it been committed by an adult.
Next, A.E.B. asserts that the trial court erred when it imposed a parental participation order against I.V. Brown as part of the disposition of A.E.B.s delinquency case without a petition for such an order first being filed. Before we address the merits of A.E.B.s claim, we must determine whether A.E.B. has standing to attack the parental participation order issued against her father.
(1) obtain assistance in fulfilling the obligations as a parent, guardian, or custodian; (2) provide specified care, treatment, or supervision for the child; (3) work with a person providing care, treatment, or rehabilitation for the child; and (4) participate in a program operated by or through the department of correction.
Ind.Code § 31-37-19-24. Therefore, a parental participation order establishes certain parental duties and directs parental choice and control in the rearing of the child.
focusing upon the tenor of the provisions relating to juveniles, the rights accorded parents and child are viewed as coextensive. Parents and child are treated as one. With the exception of petitions alleging the children to be in need of services often including allegations of some neglect by the parents, the childs and parents interests are the same.
L.B. v. State, 675 N.E.2d 1104, 1107 (Ind. Ct. App. 1996) (allowing a child to assert his parents right to be present at his hearing). Because a parental participation order can direct the parent-child relationship and affect their mutual interests, it follows that a child can challenge a parental participation order. See id. at 1108-09. Thus, we find that A.E.B. has standing to contest the parental participation order issued against her father.
Turning now to the merits of A.E.B.s claim, A.E.B. asserts that the juvenile court did not have proper authority to issue a parent participation order as part of the disposition of A.E.B.s delinquency case. Specifically, A.E.B. contends, and the State concurs, that a petition for parental participation must be filed before a juvenile court can issue the participation order as part of a delinquency disposition. We agree.
Indiana Code § 31-37-15-1 provides that a petition for the juvenile court to require the participation of a parent, guardian, or custodian in a program of care, treatment, or rehabilitation for the child can be filed by the: (1) prosecuting attorney, (2) the attorney for the county office of family and children, (3) a probation officer, (4) a caseworker, (5) the department of correction, (6) and the guardian ad litem or court appointed special advocate. Ind.Code § 31-37-15-1. This petition must be verified. Ind.Code § 31-37-15-2.
(1) That the respondent is the childs parent, guardian, or custodian.
(2) That the child has been adjudicated a delinquent child.
(D) refrain from direct or indirect contact with the child.
(a) The court may hold a hearing on a petition concurrently with any dispositional hearing or with any hearing to modify a dispositional decree.
(b) If the order concerns participation of a parent, the juvenile court shall advise the parent that failure to participate as required by an order issued under IC 31-37-19-24 (or IC 31-6-4-15.8 before its repeal) can lead to the termination of the parent-child relationship under IC 31-35.
(c) If the court finds that the allegations under section 3 of this chapter are true, the court shall enter a decree.
In Mikel, we ruled that all of these procedures must be followed before a juvenile court may mandate parental involvement subject to contempt of court. 622 N.E.2d at 228. Without the filing of a proper verified parental participation petition, a juvenile court does not have jurisdictional authority over a parent and may not order parental action. Id. at 229. The recodification of this process does not change our previous decision. Therefore, we conclude that all of the procedures contained in Indiana Code ch. 31-37-15 must be followed before a juvenile court can issue a parental participation order as part of a delinquency disposition. Thus, we reverse the parental participation order.
A.E.B. argues and the State concedes that the trial court erred when it ordered her to pay probation fees and a $50 public defender fee without conducting an indigency hearing. When a court imposes costs, it shall conduct a hearing to determine if the defendant is indigent. Ind.Code § 33-19-2-3; Vestal v. State, 745 N.E.2d 249, 253 (Ind. Ct. App. 2001). The trial court has an affirmative duty to conduct an indigency hearing when imposing costs on a criminal defendant. Everroad v. State, 730 N.E.2d 222, 227 (Ind. Ct. App. 2000). While the trial courts appointment of defense and appellate counsel for A.E.B. implied a finding of indigency, the appointment of counsel was not conclusive as to her inability to pay costs. Vestal, 745 N.E.2d at 253. Therefore, because the court ordered A.E.B. to pay costs without an indigency hearing, the proper remedy is to remand with instructions to hold such a hearing. Id. Thus, we remand for a hearing to address whether A.E.B. has the ability to pay the costs of her public defender and her probation.
Affirmed in part and reversed in part and remanded with instructions to hold an indigency hearing.
DARDEN, J., and MATHIAS, J., concur.
Footnote: The procedures for parental participation orders issued as part of child in need of services (CHINS) cases originally contained in former Indiana Code § 31-6-4-17 were recodified at Indiana Code ch. 31-34-16. See P.L. 1-1997 §§ 17, 157. The necessary procedures for a parental participation order issued as part of a CHINS case are identical to those found in the process for issuing a parental participation order as part of a delinquency disposition.
Footnote: While Indiana Code ch. 31-37-15 divided former Indiana Code § 31-6-4-17 into four separate sections, there were no substantive changes that would affect our discussion concerning the process for issuing a parental participation order issued as part of a delinquency disposition. See P.L. 1-1997 §§ 20, 157.


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TOPPIN v. MORIARTY et al.
John F. Marion and Washington B. Williams, for complainant. Charles B. Hughes, for defendants.
On bill by Nicholas Toppin against John Moriarty and another for an injunction.
John F. Marion and Washington B. Williams, for complainant.
Charles B. Hughes, for defendants.
STEVENS, V. C. The complainant seeks by injunction to restrain the defendant Moriarty from interfering with the removal of the remains of his daughter Margaret from one plot to another in the Roman Catholic Cemetery of the Holy Name. The deceased was the wife of the defendant Moriarty. She died on January 10, 1896, having been married to him about five years. She left no will, and in September, 1896, her husband took out letters of administration on her estate. On her deathbed she expressed a wish to be buried in the same plot with her father and mother. To carry out this wish her father purchased, on the day before her funeral, for the sum of $660, the plot in which she now lies. She was buried there with the concurrence of her husband. Very shortly after the burial, her mother being dissatisfied with the situation of the plot, a new plot was obtained by exchange. The new plot was surrounded by a stone coping, and a statue of the Virgin and her child was placed within it, at a cost of $2,800. The work was completed in November, 1896, and the complainant, having procured from the board of health a permit to remove the body, was about to disinter it, when the cemetery authorities were notified by Mr. Moriarty, who had quarreled with his wife's relatives after her death, that he objected. They thereupon refused to allow the removal to be made. This bill is filed against Moriarty and Bishop Wigger, in whom the title of the cemetery land is vested, to restrain them from interfering with the removal. The bishop answers, and avers his willingness to conform to any order that the court may make, and the controversy is therefore only between Toppin and Moriarty. Mr. Moriarty's insistment is that, inasmuch as his wife's body must be taken from its present resting place in any event, its disposition belongs to him, both as husband and administrator. The complainant's insistment is that he should be permitted to remove it to the new plot, both because of his daughter's dying request, and because Moriarty, by conduct to which I shall hereafter advert, is estopped from exercising his prior right, if he had any, to designate her last resting place. As the controversy is an unusual one, it will be useful to state at some length the legal rules applicable to the subject: By the common law there is no property in a dead body (Reg. v. Sharpe, Dears. & B. Crown Cas. 160, 40 Eng. Law & Eq. R. 581), and the corpse cannot be the subject of larceny (Haynes' Case, 2 East, P. C. 652), although its unauthorized removal is a misdemeanor (Reg. v. Sharpe, supra). The executors ordinarily have a right to its custody and possession until it is properly buried. Reg. v. Fox, 2 Q. B. 246; Little, Burial, 1. A husband is liable for the necessary expenses of the decent interment, even though he be separated from his wife, and although she be buried without his knowledge or request. Ambrose v. Kerrison, 10 C. B. 776; Bradshaw v. Beard, 12 C. B. (N. S.) 344. A parent was, by the law of England, bound to provide Christian burial (that is, burial in consecrated ground, with the services of thechurch) for his child, if he had the means. Reg. v. Vann, 2 Den. Crown Cas. 325, 15 Jur. 1090. A householder, even, in whose house a poor person died, was, if no other person undertook the duty, bound to inter the body decently. And a stranger might enforce payment of the expense of burial out of the effects of the deceased, and was not liable as executor de son tort. Tugwell v. Heyman, 3 Camp. 298, note. The right of the parishioner to burial, said Lord Stowell in Gilbert v. Buzzard, 3 Phillim. Ecc. 350, "strictly taken, is to be returned to his parent earth for dissolution, and to be carried there for that purpose in a decent and inoffensive manner." In his third Institute (page 203), Lord Coke says: "In every sepulchre that hath a monument, two things are to be considered, viz. the monument and the sepulchre or burial of the dead. The burial of the cadaver (that is, caro data vermis) is nullius in bonis, and belongs to ecclesiastical cognizance; but, as to the monument, action is given, as hath been said, at the common law, for the defacing thereof." And in Poster v. Dodd, 8 Best & S. 854, Byles, J., said: "A dead body by law belongs to no one, and is therefore under the protection of the public. If it lies in consecrated ground, the ecclesiastical law will interpose for its protection; but, whether in ground consecrated or unconsecrated, indignities offered to human remains, in improperly or indecently disinterring them, are the ground of an indictment." In England a body, once buried, could only be removed by order of the coroner for the purposes of an inquisition, or by a faculty (special dispensation) granted by the ordinary in his consistory court, or by license of one of the secretaries of state. Little. Burial. The granting or revocation of such a faculty is a judicial proceeding. In re Pope, 5 Eng. Law & Eq. 585; Vestry of St. Pancras v. Vicar and Church Wardens of Parish of Si Martin, 6 Jur. (N. S.) 540. As in this country there is no ecclesiastical jurisdiction, "the remedy," says Judge Story in Beatty v. Kurtz, 2 Pet. 566, "must be sought, if at all, in the protecting power of a court of chancery, operating by injunction to preserve the repose of the ashes of the dead and the religious susceptibilities of the living." Accordingly it has been uniformly held in this country that, where questions involving the care and custody of a dead body arise, the litigation is necessarily in equity.
With these preliminary observations, I now come to the question at issue: Has the husband such a right to his wife's remains at to their custody that he can prevent the complainant from reinterring them in the plot which has been prepared for them? That he has no property right in them is manifest from the foregoing cases, which declare that there can be no property in a dead body. Has he, then, a right to their custody? A right to the exclusive possession of a material thing, such as a dead body is, for an indefinite period, would be necessarily a property right, and so I think it may be safely asserted that the husband has no such right. What, then, is his right? It is said in Weld v. Walker, 130 Mass. 422, that because the husband's relationship to his wife is nearer than that of the next of kin, and because he is charged with the duty of burying his wife, it is his right to determine the place of her burial, although it is cautiously added: "It may be that the right of the husband is not an absolute right. If he should act in wanton disregard of the rights of the other relatives, or to the feelings of the community, perhaps a court of equity would not aid him." Accordingly it has been held in a number of cases that, where the body is once buried in a suitable place, the surviving husband or wife is not, in general, at liberty to remove it, against the wishes of the relatives in whose vault or burial place it has been interred. Wynkoop v Wynkoop, 42 Pa.St. 293; Pierce v. Proprietors, 10 R.I. 227; Guthrie v. Weaver, 1 Mo. App. 136; Secord v. Secor, 18 Abb. N. C. 78; Peters v. Peters, 43 N. J. Eq. 140, 10 Atl. 742. If in the case at bar the wife's body had, with the husband's consent, been interred in the lot in which it now lies, and her father and mother had not exchanged this lot for another, it is entirely clear that he could not have removed it. The peculiarity of the case consists in this, viz. that by reason of the action of the wife's parents it has become necessary to take it up and rebury it. An examination of the authorities convinces me that what we are really dealing with in cases of this sort is a question of duty, rather than of right, strictly so called. In his character of administrator, if he sustain that character, the husband is by the law of the land charged with the duty of burial, just as an executor is; and, in his character of husband, he, first of all, because he is nearest to her, is by the law of nature charged with the same duty. As incidental to this duty, and in order that it may be properly performed, he is intrusted with the custody of the body until it is finally deposited in its permanent resting place. In England the duty, at least in former centuries, would have been discharged by seeing that his wife's remains were deposited in the church or churchyard of the parish in which she had lived. Once buried there, he had no more right of control over them than the merest stranger. Neither husband nor relatives could have disinterred the body without obtaining a faculty from the ordinary. Not even the parson in whom the freehold was vested could have authorized a removal. It was an indictable offense for a child, even, to remove the body of a parent from its place of interment. Earl, J., says in Reg. v. Sharpe, 40 Eng. Law & Eq. 582, "There is no authority for saying that relationship will justify the taking of a corpse away from the grave where it had been buried." Nothing short of a faculty grantedby the ordinary in his judicial capacity would have sufficed, and this faculty would have been conceded, not on the idea of right in the applicant, but of discretion in the ordinary, called into exercise by some reason of family sentiment or public convenience. Rector of St. Michael Bassishaw v. Parishioners  Prob. Div. 233, 244; Vicar of St. Botolph v. Parishioners  Prob. Div. 161; In re Kerr  Prob. Div. 284.
The status of the present case is this: The title to the cemetery is vested in Bishop Wigger. The certificate received by the so-called lot owner is merely that T. has paid $— "for one plot [describing it] in the cemetery of the Holy Name, to be used for burial purposes only, subject to the regulations of the cemetery and the rules of the Catholic Church in this diocese." This certificate is signed, not by the bishop, but by the secretary of the cemetery. The legal situation, then, is that the bishop holds the land in trust for the holders of certificates, for burial purposes, just as the parson in England held the freehold of the churchyard upon a similar, though somewhat broader, trust. "The fee of a church or churchyard," says the chancellor of the consistory court of London in Vicar of St. Botolph v. Parishioners  Prob. Div. 167, "is by law in perpetual abeyance, whilst the freehold of the chancel is vested in the rector, and of the church and churchyard in the incumbent, but in both cases for the use of the parishioners. The final control of the church and chancel and of the churchyard is vested in the chancellor, as ordinary for this purpose." The use is a charitable use. Newark v. Stockton, 44 N. J. Eq. 180, 14 Atl. 630. Bishop Wigger submits himself to the judgment of this court. When his authorized agent canceled the first certificate and issued a new one, he necessarily agreed that the body interred in the plot first purchased should be removed to the new plot. Is the husband in a position to prevent the removal? If I am right in the view I have taken, namely, that he is not vested with a right, but charged with a duty, it is apparent that in designating his wife's father's plot as the final resting place of her remains, and in seeing that she was interred there, he did what would ordinarily amount to a complete performance of that duty. If, in consequence of the new situation, a new duty has arisen, he is in the performance of it, subject to the controlling power of this court as the successor of the ecclesiastical court. If nothing else appeared than that, for some reason or other, it was necessary to remove the body, then he, as husband and administrator, would, a controversy arising, be permitted to select another resting place. But there are two additional facts in the case at bar, which it seems to me make it the duty of the husband to allow his wife's body to be buried in the lot prepared for it. These facts are: First, his wife's request that she should be buried with her family, and his assent there to after her death; second, his conduct in assenting to the exchange of the lots, and in allowing the work upon the new plot to proceed without objection, at great expense to complainant. First, as to his wife's verbal request: If the husband had a legal right to his wife's remains, I cannot conceive how her verbal request could have any effect. In Williams v. Williams, 20 Ch. Div. 659, the court refused to give effect even to a testamentary direction relating to the disposition of testator's body. In many of the cases before cited, however, requests of this character have been allowed weight. This could only have been on the theory that they bore upon the question of duty. In re Kerr  Prob. Div. 285, is a strong case of this kind. The deceased had expressed a wish that his body should be cremated, and application was made to the judge of the consistory court for a faculty to permit the remains, after cremation (a practice then entirely novel), to be placed in a niche of the wall of the Church of St. Saviours, in a sealed urn. Permission to put the urn in the wall was refused, but leave was granted to put it in consecrated ground under the floor. The judge said, "The court would not have been prepared to grant the faculty, had not Mr. Kerr, as deposed to by his widow, expressed during his life his wish that his body, after his death, should be cremated." Now, in the case at bar, we have not only proof of the wife's request, but of the husband's assent to it. Her request was, not that she should be buried in any particular plot, but in the plot in which her father and mother would be buried. It is perfectly plain, on the evidence, that it was a matter of perfect indifference to Mr. Moriarty, when the first plot was purchased, whether that particular plot was selected, or some other. If the plot subsequently acquired had then been brought to the attention of the parties, it would have been equally satisfactory to him. It was only because he subsequently quarreled with Mrs. Toppin, and, as he told Mr. Kelly, wished to put her to all the trouble he possibly could before he would allow her to remove the body, that he interfered to prevent the removal. I do not think that Mr. Moriarty was in good faith trying to perform a duty when he interfered. The substance of his consent was that his wife should repose by the side of her parents, and he gives no good reason for now withdrawing it. In the second place, it is shown, not only that he thus consented, but that he knew of the exchange of the lots, and of the work that was being done on the second lot, and that he made no objection until that work was completed. It is said by complainant's witnesses that he approved of the exchange. This he denies, but he admits that Kelly, the contractor, told him that they were going to put up the monument on the new lot, and have his wife's body removed there; and he testifies that he did not then object, because the contractor, whom hehad himself introduced to Mr. Topping begged him not to say anything about it, as it might interfere with his work under the contract. That the new plot is a suitable place in which to bury the body is not, and cannot be, questioned. It is one of the best in the cemetery. The complainants have, in their bill, offered to allow the defendant to repose beside his wife. The defendant has as yet acquired no plot in which to inter it. It seems therefore quite plain that the defendant's duty now requires him to allow his wife's body to be taken to the place provided for it. The complainants are entitled to an injunction.

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This suit was brought to determine the validity of the retrocession by Congress to the State of Virginia of that part of the District of Columbia, as originally constituted, which was ceded by Virginia to the United States. The plaintiff in error was the plaintiff in the court below. The case upon which he relies is thus set forth in his declaration: In pursuance of the Constitution of the United States, Virginia, by an act of her legislature of Dec. 3, 1789, ceded to the United States that part of her territory subsequently known as the county of Alexandria. Congress passed an act accepting the cession. Maryland ceded to the United States the county of Washington, and Congress accepted that cession also. The two counties constituted a territory ten miles square, which Congress set apart as the seat of the government of the United States, and organized as the District of Columbia, over which the Constitution of the United States required that Congress should exercise exclusive legislation in all cases whatsoever. Thereafter, on the 9th of July, 1846, Congress, in violation of the Constitution, passed an act purporting to authorize a vote to be taken by the people of Alexandria County to determine whether the county should be retroceded to the State of Virginia, and declaring, that, in case a majority of the votes should be cast in favor of retrocession, the county should be retroceded and for ever relinquished in full and absolute right and jurisdiction. A majority of the votes were cast for retrocession: whereupon, without any further action by Congress, the State of Virginia passed an act declaring that the county was reannexed, and formed a part of the State. Since that time the State has assumed to exercise full jurisdiction and control over the county, and to authorize the election of officers for the county, among whom is one known as the collector for the township of Washington. The defendant was elected such collector, and assumed to exercise the duties of his office. The State has also assumed to enforce the assessment and collection of taxes upon persons and property in the county. The plaintiff resides in the county, and owns a large amount of real estate and other property there. The defendant alleged that an assessment had been made upon this property; that there was of $165.18; and he demanded payment. In the event of refusal to pay, he would have sold the property pursuant to the law of the State. To prevent the sacrifice which this would have involved, the plaintiff paid the money under protest; notifying the defendant at the time that he regarded the exaction as illegal and unauthorized, upon the ground that the county of Alexandria was not within the jurisdiction of the State of Vir ginia, but that it was within the District of Columbia. He avers that the act of Congress of 1846, before mentioned, every thing done under it, and the law of Virginia reannexing the county to the State and extending her jurisdiction over it, are contrary to the Constitution of the United States, and illegal and void.
For certain purposes, the States of the Union are regarded as foreign to each other. Buckner v. Finley, 2 Pet. 590; Warden v. Arrel, 2 Wash. (Va.) 298.
The acts of an officer de facto, within the sphere of the powers and duties of the office he assumes to hold, are as valid and binding with respect to the public and third persons as if they had been done by an officer de jure. Elwood v. Monk, 6 East, 235; King v. Corp. Bedford, 6 East, 368; Tucker v. Aiken, 7 N. H. 134; Fowler v. Babe, 9 Mass. 231; Com. v. Fowler, 10 id. 291; People v. Collins, 7 J. R. 549. These propositions were referred to in the discussion at the bar, and we have not overlooked them.
A government de facto, in firm possession of any country, is clothed, while it exists, with the same rights, powers, and duties, both at home and abroad, as a government de jure. It may send ambassadors and make treaties. Such treaties bind the nation and descend in full force upon any succeeding government that may be established. The assailants of a king de facto in England are liable to be punished for treason. Such was the rule of the common law, and the celebrated statute of Henry VII. only reaffirmed it. The legislative and judicial authorities called into existence may proceed as if the prior government had not been displaced. All municipal functions may be performed without regard to the origin of the new polity. Cromwell's ambassadors were received everywhere. Hale accepted from him the place of a judge of the common pleas. After the Restoration, Charles. II. made him Chief Baron of the Exchequer, and subsequently Chief Justice of the King's Bench. The Code Napoleon was the work of a ruler whose government rose amid the ruins of a revolution, and was subsequently overthrown. The governments of both these rulers were doubtless regarded by the other governments of Europe as only de facto. Whether they were or were not de jure also is a question, which, in this case, it is unnecessary to consider.

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December 29, 1982. Review Denied March 1, 1983.
Appeal from the Superior Court, Pima County, Cause No. S-828, Lillian S. Fisher, J.
Kathleen C. Roberts, Tucson, for appellant natural mother.
Edith A. Croxen, Tucson, for appellant natural father.
Robert K. Corbin, Atty. Gen. by Joan R. Mendelson, Asst. Atty. Gen., Tucson, for appellee State.
William Langen, Tucson, for appellee minor child.
The parents of the subject juvenile have brought this appeal to challenge the termination of their parental rights by the juvenile court.
The child, a son, was born in September 1969 and lived with his parents until February 1977 when he was removed and placed in a foster home. He has remained in a foster home since that time. The state alleged that the mother was unable to assume parental responsibility because of mental illness and that the father was unable to assume parental responsibility because of alcohol abuse. After a protracted court hearing, the juvenile court found by clear and convincing evidence that the parents were unable to assume parenting responsibilities and ordered severance.
The original findings of fact and conclusions of law made no reference to the standard of proof utilized by the juvenile court. Pursuant to order of this court, it was revested with jurisdiction in order to review the file and after such review, found that the clear and convincing standard as dictated by Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), was met.
"When the termination of the parentchild relationship is sought under § 8-533, subsection B, paragraph 3, the court shall appoint a guardian ad litem for the alleged incompetent parent. The court may, in any other case, appoint a guardian ad litem as may be deemed necessary for any party."
That section was amended in 1979 to add that portion we have emphasized. The present § 8-535(D) was contained in the same legislative enactment. From this we conclude the legislature intended to require the appointment of a guardian ad litem for any parent alleged to be incompetent by reason of alcoholism as well as the other grounds of incompetency contained in paragraph 3. Termination proceedings must be conducted in strict compliance with the statutes involved. Webb v. Charles, 125 Ariz. 558, 611 P.2d 562 (App. 1980). A guardian ad litem must be appointed when the ground for severance is incompetency. Appeal in Gila Cty. Juvenile Act, No. J-3824, 130 Ariz. 530, 637 P.2d 740 (1981).
"The court may appoint an attorney to serve as a guardian ad litem and as counsel to protect the interest of the child . . . In any proceeding where a parent appears to be mentally incompetent or under 21 years of age, the court may appoint a guardian ad litem to protect the interests of such parent."
If an attorney may be appointed to serve both as counsel and as guardian ad litem for a child under the rules, certainly the same is true when the appointment is for the parent. Counsel for appellant/mother has been unable to cite authority for the proposition that two individuals must be appointed. She cites Dill v. Superior Court, 60 Wn.2d 148, 372 P.2d 541 (1962), which cites Flaherty v. Flaherty, 50 Wn.2d 393, 312 P.2d 205 (1957), for the proposition that where a statute makes the appointment of a guardian ad litem mandatory, an attorney cannot fill that role. However, those cases stand only for the proposition that a formal appointment of the guardian ad litem is necessary, and the mere fact that counsel is present will not suffice. Indeed, the language of Flaherty, supra, intimates that had counsel been appointed as guardian ad litem by the time of the hearing in question, no deficiency would have been found.
The same attorney who was appointed guardian ad litem for the mother was also appointed as attorney for the father. As we have discussed she was also appointed counsel for the mother. The mother now contends, and she also made this objection below, that there was a conflict between the mother and father, and therefore one attorney could not represent both. The record does not support this contention, and nothing before us on appeal shows any prejudice to the mother as a result of the dual representation.
1) The mother's appearances and participation constitute a waiver of her claim of insufficient service of process.
2) Since counsel was subsequently appointed it does not matter that the mother appeared without counsel at the first hearing. Nothing occurred except an order fixing the time for the next hearing.
3) The record shows many efforts to rehabilitate and reunite the members of this family, more than satisfying any requirement in Arizona State Dept. of Economic Security v. Mahoney, 24 Ariz. App. 534, 540 P.2d 153 (1975).
4) The court properly took judicial notice of another superior court file.
5) The record is replete with evidentiary support relating to the mental incompetence of the mother.
The severance order is set aside as to the father and remanded for proceedings consistent herewith; it is affirmed as to the mother.

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