Davis v. Sears

• Decision Date: 04 February 1931
• Docket Number: No. 1200-5551.,1200-5551.
• Citation: 35 S.W.2d 99
• Parties: DAVIS et ux. v. SEARS et ux.
• Court: Texas Supreme Court

35 S.W.2d 99

DAVIS et ux. v. SEARS et ux.

No. 1200-5551.

Commission of Appeals of Texas, Section B.

February 4, 1931.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Habeas corpus proceeding by T. D. Sears and wife against Porter J. Davis and wife to recover the possession and custody of applicants' minor son. From a judgment in favor of respondents, applicants appealed to the Court of Civil Appeals, which reversed the judgment and rendered judgment in favor of applicants [19 S.W.(2d) 159], and respondents bring error.

Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

Samuels, Foster, Brown & McGee, of Fort Worth, Paul V. Harrell, of Cross Plains, and Phillips & Phillips, of Dallas, for plaintiffs in error.

Mack & Mack, of Fort Worth, and John W. Woods, of Dallas, for defendants in error.

SHORT, P. J.

This is a habeas corpus proceeding instituted by the parents of a male child now 5 years old, against Porter J. and Annie Davis, husband and wife. The application for the writ states that the minor son, Kent Sears, Jr., of the applicants, is in possession of, and is illegally restrained of his liberty by said Davis and wife. There was no other pleading on the part of the parents of the minor. Davis and his wife answered at some length, and, after a general demurrer and a general denial, alleged that Mrs. Alma McBroom Sears, under the name of Alma McBroom, had, by written instrument duly executed, empowered the Hope Cottage Association of Dallas County, Tex., to secure for her infant child a home with people of their selection; that under such authority they (Davis and wife) took said child on July 7, 1925, when it was three months and one day old, and they had made and provided for the child a good home, and were rearing it under good influences and Christian surroundings, had adopted it in the manner provided by law, and that it was to the best interest of the child that it remain in their exclusive custody, care, and control, and alleging other facts indicating that the present environment of the child was good and would likely so remain.

The trial judge who heard the case, without the aid of a jury, refused to disturb the custody of the child, declaring in the judgment rendered "that it is to the best interest of the minor, Kent Sears, Jr., and to his future welfare, that his permanent care, custody, control and possession remain with the defendants, Porter J. Davis and wife, Mrs. Annie Davis." The motion for a new trial having been overruled, and the court having been required to file its conclusions of law and findings of fact, which it did, the record was finally lodged with the Court of Civil Appeals for the Eleventh Supreme Judicial District, where, upon a hearing, the judgment of the district court was reversed, and judgment rendered in favor of the parents of the minor, giving to them the exclusive custody and control of the child. 19 S.W.(2d) 159. After the motion for rehearing had been filed in and overruled by the Court of Civil Appeals, an application for writ of error was filed in and granted by the Supreme Court. The assignments of error assail the judgment of the Court of Civil Appeals as being contrary to the law and the undisputed facts.

First assignment of error: "Since the trial court expressly found that it is to the best interest of this child for his custody to remain with his foster parents, these plaintiffs in error, and the proof amply supports that finding, the Court of Civil Appeals erred in not affirming the judgment of the trial court."

Second assignment of error: "Since the trial court expressly found that it is to the best interest of this child for his custody to remain with his foster parents, these plaintiffs in error, and the proof amply supports that finding, the Court of Civil Appeals erred in reversing the judgment of the trial court in favor of these plaintiffs in error, notwithstanding this, on the mistaken theory that a failure to show a positive unfitness on the part of the defendants in error concludes the controversy in their favor and forecloses all inquiry as to what is to the child's best interest."

Since the findings of fact, duly filed in response to a motion to that effect by the trial judge, are not assailed as being unsupported by the testimony sufficient to justify the same, and since these findings of fact thus unassailed are binding upon the Court of Civil Appeals, and since they have been sufficiently summarized by that court in its opinion, we here adopt said summary, to wit:

"That Kent McBroom Sears was born out of wedlock on April 21, 1925; was a few hours later sent to Hope Cottage in Dallas; that on April 28, 1925, when the child was a week old, the mother signed, executed, and acknowledged an instrument in which she recited that the father of the child was Richard Jones, and authorized and empowered the Hope Cottage Association to secure for the child a home with people of their selection who might or might not adopt it; that she waived any and all liability that might accrue by virtue of her parental authority; that on July 7, 1925, said child was placed by Hope Cottage Association with Porter J. Davis and wife, Annie Davis, who on said day duly and legally adopted said child; that respondents have no natural children, have looked after and cared for said child with as much solicitude and care, and have supplied all of its wants and have lavished their affections on it as freely as if it were their natural child; that it has been with them since infancy, knows no other home or parents; that it is in an ideal home; respondents are church people, members of and attend church, and the child will be reared by them under church influence, properly educated by them; that respondents are industrious, frugal, and economical, and have accumulated property of the value of $12,000, including a home owned by them in close proximity to churches and good schools. The court further found that it would be a great injustice to the child to sever its then existing relationship, and that the best interest of the child required that it remain in the custody and control of the respondents. The court further found that the mother, at the time of the execution of said instrument, was not married, and that the father was asserting no claim to the child, and that it was in pursuance of the authority set out in said instrument that the child was placed with the respondents and by them duly and legally adopted. It was further found that plaintiffs were married about April 30, 1925, some 30 days after the birth of the child; that neither of them have ever evidenced any great concern or displayed any great affection for the child; that they have never contributed anything to its support or maintenance; that during about 15 days when the mother remained at the maternity home where the child was born, the father visited her three or four times; that plaintiffs left Dallas together and neither undertook to see the child nor to inquire concerning its welfare until about August 17, 1925, during which time neither manifested any interest in the welfare of the child; that after about two years suit was filed by plaintiffs in the district court of Dallas county, seeking to recover custody and possession of said child; that up to the time of filing of said suit, outside of two letters addressed to Hope Cottage Association, in response to which information was given that the child had been adopted by good people, neither of the plaintiffs made any inquiry concerning the child. Further findings were that plaintiffs do not own any home, that they are tenants living some three or four miles from school and churches; that they have no property other than some farming tools, implements, workstock, and about 25 head of cattle, and an unharvested grain crop, consisting of wheat and oats of an undetermined amount, and a cotton crop of about 25 acres, planted but not matured. That plaintiffs had no connection or association with said child since its birth, and there are no ties of affection existing between it and them, and that the respondents are much better qualified intellectually and morally, and better suited and equipped, for the proper rearing and educating of said child than are the plaintiffs. It was further found that to destroy or discontinue its present relationship would work great and unnecessary hardship on the child and might materially affect its future; that the child's welfare might be greatly impaired by making any change in its relationship, due to the fact that it had been and was growing up as a member of the family of respondents; that it knows no other home or parents, and it...