State ex rel. Simpson v. Salter

• Decision Date: 21 April 1947
• Docket Number: 38446.
• Citation: 211 La. 918,31 So.2d 163
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. SIMPSON et al. v. SALTER et al.

31 So.2d 163

211 La. 918

STATE ex rel. SIMPSON et al. v. SALTER et al.

No. 38446.

Supreme Court of Louisiana

April 21, 1947

Rehearing Denied May 26, 1947.

Fraser & Fraser, of Many, for plaintiffs-relators.

J S. Pickett and J. Reuel Boone, both of Many, for defendants-respondents.

PONDER Justice.

The relatrix Mrs. Leola Simpson, is seeking through habeas corpus proceedings to recover custody of her minor child, Sandra Jean Holt.

The relatrix gave birth to the child involved herein on March 1, 1946. She was unmarried at the time and destitute. She became acquainted with the mother of Mrs. Arline Petty Salter, one of the respondents, a short time before the birth of the child while the relatrix was residing in Beaumont, Texas. The mother of Mrs. Salter knew that the respondents, J. S. Salter and his wife, Arline Petty Salter, were anxious to adopt a baby and suggested that they come over to Texas and see the relatrix. The Salters went to Beaumont on or about February 2nd and contacted the relatrix, who agreed to let them have the baby when it was born. They brought the relatrix to Shreveport and placed her in the home of the Volunteers of America. They gave her a small amount of money, some linen and some medicine. There was some correspondence between the Salters and the relatrix concerning the adoption of the baby. Two of the letters from Mrs. Salter to the relatrix form a part of the record. In these letters Mrs. Salter informed the relatrix that she and her husband were having adoption papers drawn up in order that the relatrix might sign them when the baby was born and urged the relatrix to allow them to designate the father as unknown in order to avoid the securing of the signature of the father whose whereabouts were unknown to the relatrix. It was explained in the letters that this was the only way that the Salters could obtain the legal right to the child since the father's signature was unobtainable.

The child was born on March 1st at Charity Hospital in Shreveport. On that date the relatrix signed, at the request of the Salters, a letter purporting to give the baby to the respondents. Three days later the relatrix with the baby was returned to the home of the Volunteers of America. On March 5th, the respondents came to Shreveport for the baby and returned with it to their home in Sabine Parish. The relatrix addressed a letter to the respondents on the 7th or 8th of March requesting them to return the baby and stating that she would not go through with the agreement. On March 12th, the respondents presented to the relatrix at Shreveport an instrument wherein it was recited that relatrix consents to the adoption of the child by the respondents and waives the privileges accorded by law to be made a party to the adoption proceedings. At that time the relatrix, who had not recovered from child birth, called in her uncle, Mr. G. W. Bolton, a merchant of Shreveport, whom she had not previously communicated with, and asked his advice about signing the instrument. Mr. Bolton advised her that it was best to give the baby to the respondents in view of the fact that she had no home and was not in condition to take care of the baby. Mr. Bolton and the relatrix testified that the relatrix finally consented to sign the instrument, not willingly, but because the relatrix thought Mr. Bolton knew best. It appears from the testimony of the relatrix and Mr Bolton that the relatrix unwillingly signed the instrument after Mr. Salter had informed the relatrix that he would not release the baby and would carry the matter to court. The instrument purports to be signed in the presence of two witnesses, Mr. Bolton and one Sibley. The signature of the witness Sibley is unexplained. The relatrix, the respondents and Mr. Bolton all testify that they were the only persons present when the instrument was signed. On March 29, 1946, the respondents filed a petition in the Juvenile Court of Sabine Parish seeking to adopt the infant and praying for an interlocutory decree for custody of the child. The Juvenile Court ordered an investigation to be made by the Department of Welfare, but executed no order with reference to the custody of the child. On May 10, 1946, the relatrix filed an opposition to the adoption proceedings. She and her former husband, W. G. Simpson, from whom she had secured a divorce sometime in the year 1944, were remarried on May 18, 1946. Shortly thereafter, a supplemental and amended opposition was filed in the Juvenile Court wherein her husband joined the relatrix in opposing the adoption. No further proceedings were taken in the Juvenile Court.

It appears that the relatrix has continuously endeavored to regain the custody of the child since it was first taken by the respondents on March 5th.

The present habeas corpus proceedings were instituted by the relatrix and her husband on November 26th, 1946 in the District Court of Sabine Parish. After various exceptions had been filed, a trial on the merits was had. After the trial on the merits was completed, the lower court sustained a plea of lis pendens, previously filed, and dismissed the cause as in case of nonsuit. The relatrix and her husband applied for the exercise of our supervisory powers and a rule was issued ordering the respondents to show cause why the relatrix and her husband should not be granted the immediate possession of her minor child. The matter has been submitted for our determination.

After Mrs. Simpson remarried her husband, she returned to Groves, Texas, her former home, and now resides with her husband and three children, all boys, ages 18, 15 and 10 years, issue of their former marriage. Mr. Simpson testified that he was willing for his wife to bring the baby to their home and rear it as their own. He stated that he intended to adopt it as his own. There is nothing in the record to indicate that the child would not be well cared for in the Simpson home or that the mother is unfit to have its custody.

The respondents undoubtedly knew that Mrs. Simpson was not going to consent to an adoption of the child prior to and at the time the adoption proceedings were filed. We are not presented with a case where a child is left in the custody of others for a long period of time before a request is made for its return. From the evidence in this case, the respondents knew at the time they received the child, or within a few days thereafter, that Mrs. Simpson did not willingly give up the custody of the child, and would not consent to its adoption.

Prior to the amendment to Article 7, Section 52 of the Constitution, adopted in 1936, giving the Juvenile Court jurisdiction in adoption proceedings of children under seventeen years of age, the jurisprudence of this State was well settled that where a contest between a parent and a third person as to who should have the control and care of a minor, that the court exercising general civil jurisdiction was the proper and exclusive tribunal to decide the issue. In re Owen, 170 La. 255, 127 So. 619.

The amendment giving the Juvenile Court jurisdiction in adoption proceedings did not in our opinion give the Juvenile Court jurisdiction over a contest between a parent and a third person for the custody of a minor. The exclusive jurisdiction in such a contest still lies in the court exercising general civil jurisdiction.

The plea of lis pendens is not well founded for the reason that the cause of actions are entirely different and are not such that present concurrent jurisdiction. In the first place the Juvenile Court has exclusive jurisdiction in adoption proceedings of children under seventeen years of age and in the second place the civil district court has exclusive jurisdiction over a contest between a parent and a third person for the custody of a minor.

Under the...