Brooks v. De Witt

• Decision Date: 16 February 1944
• Docket Number: No. 11370.,11370.
• Citation: 178 S.W.2d 718
• Parties: BROOKS et ux. v. DE WITT et ux.
• Court: Texas Court of Appeals

178 S.W.2d 718

BROOKS et ux. v. DE WITT et ux.

No. 11370.

Court of Civil Appeals of Texas. San Antonio.

February 16, 1944.

Rehearing Denied March 16, 1944.

Appeal from District Court, Bexar County; John F. Onion, Judge.

Suit by Jacque O. Brooks and his wife against Fred J. DeWitt and his wife to recover custody of the infant Jacqueline Louise Brooks, also known as Patricia Ann DeWitt. Judgment for defendants, and plaintiffs appeal.

Reversed and remanded, with directions.

Davis, Hall, Clemens & Knight, of San Antonio, for appellants.

Leonard Brown, of San Antonio, for appellees.

H. P. Drought, of San Antonio, amicus curiae.

PER CURIAM.

This is a child custody case. Plaintiffs below and appellants here are Jacque O. Brooks and his wife, Mona Louise Brooks, natural parents of the infant, Jacqueline Louise Brooks, also known as Patricia Ann DeWitt. Defendants below and appellees here are Fred J. DeWitt and wife, Ann DeWitt, who claim custody of the child by adoption. This right is predicated upon two decrees of the district court, i.e., a decree adjudging the child to be a dependent or neglected child in accordance with the provisions of Articles 2329 and 2338, Vernon's Ann.Civ. Stats., and a decree of adoption entered in accordance with Article 46a, Vernon's Ann.Civ. Stats. Plaintiffs asserted that these decrees were entered without notice to them and are consequently not binding upon them. After a trial without a jury, judgment was rendered for the defendants. Upon request, findings of fact and conclusions of law were filed. In effect, the trial court held that the decrees above mentioned were binding upon plaintiffs. That holding is vigorously attacked here.

For the purpose of stating the case and the facts giving rise thereto, we shall use that designation of the parties employed in the trial court. It appears that in the late summer of 1940 plaintiffs, theretofore residents of Jacksonville, Florida, came to San Antonio and rented a room in a residence at 225 E. Locust Street. The residence and a garage apartment on the premises were also occupied by Mrs. P. H. Rylander and their daughters, Mrs. Thelma Grooms, Mrs. Edith Jordon and Mrs. DeWitt and the latter's husband.

Plaintiffs, aged twenty-five and eighteen, respectively, were in straightened financial circumstances and Jacque Brooks, in ill health, was looking for employment. On September 9, 1940, shortly after the couple arrived in San Antonio, a baby girl was born to Mrs. Brooks, and after leaving the hospital plaintiffs brought the child to the parents' room on Locust Street, and remained there with her for the time being.

The father failed to secure steady employment in San Antonio, and for that and other reasons the couple decided to return to Florida, by automobile. Because of unfavorable weather and other adverse conditions, and at the solicitation of Mrs. Grooms and other members of her family, who had become attached to the child, plaintiffs decided to leave their baby with the family. Accordingly plaintiffs arranged with Mrs. Grooms to care for and keep the child until plaintiffs sent for it, when Mrs. Grooms was to take it to them in Florida and thereby procure a trip she had long coveted. In the meantime plaintiffs agreed to send Mrs. Grooms five dollars per week for caring for the child until plaintiffs could send for it. Under that arrangement the parents returned to Florida, without their baby, leaving San Antonio on November 15, 1940. They kept their agreement, sending Mrs. Grooms the specified payments, until January 4, 1941, when they ceased communicating with her or her relatives in San Antonio.

A little over four months later, however, on Mother's Day, May 12, 1941, the parents called Mrs. Grooms by long distance telephone from Florida and told her they were ready for her to bring their baby to them in accordance with their agreement with her. Mrs. Grooms then told them she could not take the baby to plaintiffs, stating as a reason that her brother-in-law and sister, defendants DeWitt, had already "adopted" the child. This was the first notice or intimation plaintiffs had of any proceedings or intention to institute proceedings in the courts of Bexar County concerning their infant daughter. We are now relegated to a statement of those proceedings.

On March 12, 1941, five months after plaintiffs left their baby in San Antonio under their arrangement with Mrs. Grooms, Mrs. R. C. Hugman, Executive Secretary of San Antonio Social Welfare Bureau, in obvious collaboration with defendants and Mrs. Grooms, filed her petition in a district court of Bexar County, sitting as a Juvenile Court, praying that the Brooks baby be declared a dependent child under the provisions of Articles 2329 and 2338, supra. In an amended petition filed on March 21st Mrs. Hugman alleged sufficient facts to authorize judgment declaring the child a dependent as defined in Art. 2330, and, further,

"That the name of the mother of said child is Mona Louise Shuman Brooks, and the name of the father of said child is Jacque Reyes Brooks, and their place of residence is unknown, but when last heard of they were living in Jacksonville, Florida."

It was further alleged that the child "has no guardian."

It is provided in Art. 2332 that if it appears that one or both parents of the child, or its guardian if it has no parents, reside in the county, the clerk of the court "shall immediately issue citation * * * which shall be served (by the sheriff or any constable of the county) on such parent, parents, or guardian, if any, if either can be found in said county * * *. If it appears from the petition that neither of said parents are living, or do not reside in said county and that said child has no guardian residing in said county, * * * then the citation herein provided for shall not be issued; and the court may thereupon proceed to a hearing of the case. In case neither of the parents or guardian is found, then the court shall appoint some suitable person to represent said child in said cause."

Under these provisions of the statute and the responsive allegations of the petition, no process was issued or other character of notice given to plaintiffs or any one in their behalf, and after appointing a suitable person to represent the child, the Juvenile Court proceeded to a hearing, at the conclusion of which judgment was rendered declaring the child a dependent child as defined in the statute. It was recited in the judgment that

"And it appearing to the Court that neither of the parents, nor a lawful guardian of said child, can be found, Howard R. Whipple, an attorney of this Court, who is found by the Court to be a suitable person, is hereby appointed to represent said child in this cause, and now appears herein in such behalf;

"And it appearing to the Court that neither of the parents of said child resides in said County, and that said child has no guardian, the Court finds the issuance of citation in this cause is not required; * * *"

It was further recited in the judgment that "said child's mother is Mona Louise Shuman Brooks, and that if living her whereabouts is unknown; that the name of the said child's father is Jacque Reyes Brooks, and that if living his whereabouts is unknown; * * * that the occupation of the parents of said child is unknown; and that said parents have abandoned said child, and that the cause of said child being dependent is that said parents have refused to keep it or care for it, but have neglected it or have abandoned it, and that said child is destitute and homeless, and has no proper parental care or guardianship.

"It Is Therefore Ordered, that said child be, and she is hereby adjudged a dependent child; that the parental rights of the parents of said child be, and the same are hereby terminated; that said child is hereby turned over to the care and custody of Mrs. R. C. Hugman, Executive Secretary of the San Antonio Social Welfare Bureau, San Antonio, Texas, * * * and that she shall have the right to the custody of said child, subject to the further orders of this Court, and that said child shall become a ward of and subject to the guardianship of said Mrs. R. C. Hugman."

On March 24, 1941, just three days after rendition of judgment in the dependency proceeding, defendants prepared and on March 26th filed in the district court their petition for the adoption of the Brooks child under the provisions of Art. 46a, Vernon's Ann.Civ. Stats.

Section 6 of said Article, as amended in 1937, by the Acts of the 45th Legislature (p. 1324), reads in part as follows:

"Except as otherwise amended in this Section, no adoption shall be permitted except with the written consent of the living parents of a child; * * *.

"Consent shall not be required of parents whose parental rights have been terminated by order of the Juvenile Court or other Court of competent jurisdiction; provided, however, that in such cases adoption shall be permitted only on consent of the superintendent of the home or school, or of the individual to whom the care, custody, or guardianship of such child has been transferred by a Juvenile Court or other Court of competent jurisdiction. * * *"

As in Section 6 provided, Mrs. Hugman, to whom in her capacity as Executive Secretary of the San Antonio Social Welfare Bureau the custody of the child had been awarded in the dependency proceeding, endorsed on the petition her consent to the adoption of the child.

On March 31, 1941, five days after the filing of the petition, and admittedly without any notice, official, actual or constructive, to plaintiffs, a hearing was had and judgment was rendered granting defendants' petition for adoption of said child, and changing its name from Jacqueline Louise Brooks to Patricia Ann DeWitt.

In Matthews v. Whittle, Tex.Civ.App., 149 S.W.2d 601, it was held by the El Paso Court of Civil Appeals that a judgment or decree entered in accordance with the provisions of Articles...