State ex rel. Martin v. Garza

• Decision Date: 20 March 1950
• Docket Number: No. 39054,39054
• Citation: 46 So.2d 760,217 La. 532
• Parties: STATE ex rel. MARTIN v. GARZA et al.
• Court: Louisiana Supreme Court

Page 760

46 So.2d 760

217 La. 532

STATE ex rel. MARTIN v. GARZA et al.

No. 39054.

Supreme Court of Louisiana.

March 20, 1950.

Rehearing Denied April 24, 1950.

Julian E. Bailes, Natchitoches, J. Vance Thompson, Alexandria, for relatrix-appellant.

John G. Gibbs, J. E. Pierson, Natchitoches, for respondent-appellee.

FOURNET, Chief Justice.

The relatrix, Mrs. Elva V. Welborn Martin, is appealing from a judgment recalling a writ of habeas corpus previously issued, directed to the respondents Sam Aaron Garza and Stella Garza, commanding them to produce the relatrix' minor child, Hershel Schmeleberger, and rejecting her demand to have the custody of the child restored to her.

The relatrix instituted these proceedings to recover her 20-month-old son, born of her marriage to John Schmeleberger, alleging that the subject child was being unlawfully detained by the respondents in that he was being held without her consent; that at the time she left the child with the respondents on April 7, 1947, she did so because of illness and financial inability to care for him, with the understanding that the respondents would care for the child until such time as she recovered; that her signature to a purported consent to the adoption of the child was obtained by the respondents without relatrix being informed of the import thereof, and under the representation of the respondents that the purpose of her signature to the instrument was to keep anyone else from getting the child; that soon thereafter she regained her health and obtained employment, but upon calling for the child the respondents refused to surrender him unless $700 was paid to them; that this amount was later reduced to $500; and that though she made several demands for her child they still persisted in keeping it, although she is willing to pay all reasonable expenses incurred by the respondents for his upkeep. She further alleged that she is now married to and living with her second husband, Aubrey Martin, has a good home and is able to take care of the child, and that respondents are not fit persons to care for him.

The respondents first filed a motion for bond for costs and a plea of vagueness, and on the return day filed an answer, admitting that they had possession of the child and that the matter of surrendering the child upon payment of a stipulated sum of money had been discussed, but denied that the child was surrendered to them due to any misrepresentation, averring that on the contrary it was due to the serious illness of the child and of the mother, for which her own conduct was responsible, and that it was to the best interest of the child that he should remain with them.

Before undertaking the trial of the habeas corpus proceeding, the trial judge recessed as the Tenth Judicial District Court and reconvened as the Tenth Juvenile Court, in order to dispose of the proceeding there instituted on the 22d day of September, 1947, by the Garzas, respondents herein, for the adoption of the child, the relatrix here having appeared therein for the purpose of withdrawing her consent to the adoption and seeking to have revoked the interlocutory decree granting temporary custody of the child to the Garzas. After a hearing was had on the motion to revoke the interlocutory decree--which not only showed relatrix' withdrawal of her consent to the adoption of her child by the respondents but affirmatively showed that the child's father was not dead, as alleged in their petition, but that he was living in New York and had visted in Natchitoches since the filing of the adoption proceedings and that his consent to such adoption was lacking--the court recessed as the Tenth Juvenile Court, reconvened as the Tenth Judicial District Court, and proceeded to trial on the merits of the habeas corpus proceeding. After the relatrix was called to the stand to testify on her own behalf, the respondents objected to the introduction of any evidence on the ground that the district court was without jurisdiction in the matter since the juvenile court had already assumed jurisdiction of the subject child. The objection was overruled and after a trial on the merits, the court being of the opinion that the sole issue was the welfare of the child, concluded that since the respondents had nursed the child back to health from the time they had assumed the responsibility for his care and custody, he thought it to the child's best interest and welfare that he should remain with them, and accordingly rendered judgment rejecting the demands of relatrix, from which judgment she prosecutes this appeal.

The respondents have filed an answer here to the appeal, urging that their plea to the jurisdiction of the district court should have been sustained by the trial judge. The record reveals that no such plea was ever formally filed, but instead, as above stated, the plea was offered by way of objection to the evidence, and was overruled by the trial judge--and we think correctly so.

While the Tenth Juvenile Court was vested with jurisdiction in the proceedings for the adoption of the subject child, La. Constitution, Art. 7, Sec. 52, those proceedings were properly disposed of by the trial judge upon the showing made. Green v. Paul, 212 La. 337, 31 So.2d 819, and authorities therein cited; Owles v. Jackson, 199 La. 940, 7 So.2d 192; Revised Statutes, Sec. 2328, Dart's La.Gen.Stats. Sec. 4839.8. The Tenth Judicial District Court was the proper forum to determine the issues raised on the writ of habeas corpus, that is, whether the child was being illegally detained by the respondents. La. Constitution, Art. 7, Sec. 2; State ex rel. Simpson v. Salter, 211 La. 918, 31 So.2d 163; State ex rel. Fazzio v. Triolo, 156 La. 824, 101 So. 211; State ex rel. Billington v. Sacred Heart Orphan Asylum, 154 La. 883, 98 So. 406.

In such cases the sole question for the court's consideration is whether the parent by his or her conduct has forfeited his or her parental right to the child, for it is the well settled jurisprudence of his state that the courts are not authorized to interfere with a parent's authority over his or her children, except if the court is satisfied that he, or she, will neglect them, or expose them to improper influences, in which case the paramount interest which society has in seeing to it that they be well taken care of and properly brought up would justify the court in making some other disposition of them, Ex parte Lincoln, 128 La. 278, 54 So. 818; State ex rel. Martin et al. v. Talbot et ux, 161 La. 192, 108 So. 411; State ex rel. Bethany v. Corley et ux, 172 La. 266, 134 So. 87, and the burden is on those resisting the parent's right to show his or her disqualification or unfitness to have the custody of the child. State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98; State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729; Heitkamp v. Ragan, 142 La. 81, 76 So. 247. In the case of Heitkamp v. Ragan, supra, this Court quoted with approval the holding in Hibbette v. Baines, 78 Miss. 695, 29 So. 81, 51 L.R.A. 839, as follows: 'And while we are bound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best promoted by continuing that guardianship which the law has provided until it is made plainly to appear that the father [or mother] is no longer worthy of the trust. The breaking of the ties which bind the father [or mother] and the child can never be justified without the most solid and substantial reasons.' (Brackets ours.) 142 La. at page 84, 76 So. at page 248.

We think, therefore, that the trial judge erroneously based his decision in the matter (apparently reluctantly) on his appreciation of the best interest of the child, without giving consideration to the paramount right of the mother to her child, nor did he give consideration to the attempt made by the respondents to establish the relator's unfitness to have the custody of her child.

We have carefully studied and analysed the evidence in this case, and without detailing the same, suffice it to say that the respondents have totally failed to carry the burden that was theirs to prove that relatrix by her conduct has forfeited her right to her child, or that she is otherwise disqualified to have custody of the child. We are convinced from the evidence that the relatrix never intended to abandon her child or to permanently part with his custody when she surrendered him to the respondents. On the contrary, the overwhelming preponderance of the evidence shows that she did so because at the time she was ill and financially unable to care for the child, who was also ill and required medical attention in addition to ordinary care. As soon as relatrix recovered her health she immediately secured employment, and within three or four months after the child had been left with the respondents she called for him. In spite of the fact that her earnings were very meager at the time she employed an attorney and paid him a fee of $35 (although the record does not show what action was taken by this attorney); she also sought assistance of the attorney who was the notary, before whom her purported consent to the adoption had been executed, and he testified to having accompanied the relatrix at her request to the home of the respondents, where the matter of the payment of a reasonable consideration to the respondents for the care of the child was discussed and was recommenced by the attorney--which, however, relatrix was unable to pay. Her earnestness and desire to secure the custody of her child is revealed not only by the repeated efforts and demands made by the relatrix, but the record further discloses that her anxiety to recover...