Cook v. Gregg
| Decision Date | 05 December 1949 |
| Docket Number | No. 6008,6008 |
| Citation | 226 S.W.2d 146 |
| Parties | COOK v. GREGG et al. |
| Court | Texas Court of Appeals |
E. O. Northcutt, Amarillo, for appellant.
John Peterson and O. M. Calhoun, Amarillo, for appellees.
This is a habeas corpus proceeding instituted and filed in the 108th District Court of Potter County by the appellant on behalf of Eliza Evlin Cook, an infant, seven months of age. Appellant is the natural mother of the child. She alleged that the child was born at Dumas, in Moore County and at the time of its birth, she was financially unable to pay her necessary medical and hospital expenses and that Mrs. Mary E. Simmons, a personal friend of hers, who was a resident of Moore County, made all arrangements for such medical and hospital care and paid the expenses incident thereto; that immediately after the birth of the child, she was still unable to care for it and her friend, Mrs. Simmons, took the child and clothed, fed and cared for it, and that it had been an the custody of Mrs. Simmons until Mrs. Simmons filed in the 69th District Court of Moore County an application to adopt the child as her own. Appellant alleged that she was willing for Mrs. Simmons to adopt the child; that she signed a waiver of notice upon her of the petition for such adoption; that, on June 19, 1949, the petition was heard by the 69th District Court; and that Mrs. Simmons' prayer for permission to adopt the child was refused and denied by the court. She alleged further that the district court of Moore County ordered the child taken from the custody of Mrs. Simmons and delivered to the appellees, Miss Gregg and Miss Wilson of Amarillo in Potter County, who had custody and possession of the child at the time this application for habeas corpus was filed. She alleged that conditions had changed and that she was then able, both physically and financially, to assume the child's custody and prayed that its custody be restored to her.
The writ was granted and the child produced in court by the appellees where a hearing was had on July 18, 1949. Appellees presented and urged a motion to quash and dismiss the writ and the motion was sustained by the court. Appellant duly excepted to the judgment and order dismissing the case and has brought the case before this court for review.
As grounds for their motion to quash the writ of habeas corpus and dismiss the cause appellees alleged that the child was not restrained of its liberty and that their custody was lawful in every respect. They alleged that they were representatives of the Division of Child Welfare of the State Department of Public Welfare, in charge of its offices at Amarillo, and that the child was delivered into their custody as such by the 69th District Court of Moore County; that, upon the hearing of the application of Mrs. Simmons to adopt the child, the court found it to be a neglected and dependent child; that Mrs. Simmons was not a proper person to have the custody of the child; and that the home maintained by her was not a proper place for it. They alleged that their custody of the child was by virtue of the judgment of the district court of Moore County and attached to their motion a certified copy of the entire record of the application and hearing in that court.
Appellant assigns error of the court in quashing and dismissing the writ of habeas corpus because, first, such action was taken by the court without hearing testimony to determine the question of what would be for the best interest of the child and secondly, she assails the validity of the judgment and order of the district court of Moore County and asserts that it was not a sufficient basis for granting appellees' motion to quash the writ of habeas corpus.
The record of the hearing in the district court of Moore County upon the application of Mrs. Simmons to adopt the child, shows that appellant had not seen the child since its birth; that the child was born out of lawful wedlock and she had consented in writing to its adoption by Mrs. Simmons. The court found that Mrs. Simmons was a widow; that she was not in good health; that she was operating a grocery store at Dumas; that she owned and rented a number of houses; that the place where she was living was not suitable as a home for the child; and that, by reason of these conditions, she was not a suitable person to adopt the child or to have its care, custody and control. The judgment, in effect, found the child to be a dependent and neglected child and ordered that it be temporarily delivered to appellees as the representatives and agents of the Division of Child Welfare of the State Department of Public Welfare, and that the department proceed to arrange for the temporary and permanent placement of the child and that report be made to the court of any arrangement or change that might be made concerning its custody and welfare.
From what we have stated it will be seen that, when the application for habeas corpus...
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