Everett v. Barry

• Court: Colorado Supreme Court
• Citation: Everett v. Barry, 252 P.2d 826, 127 Colo. 34 (Colo. 1953)
• Decision Date: 19 January 1953
• Docket Number: No. 16961,16961
• Parties: EVERETT v. BARRY.
• Writing for the Court: STONE; BRADFIELD

Page 826

252 P.2d 826

127 Colo. 34

EVERETT v. BARRY.

No. 16961.

Supreme Court of Colorado, en Banc.

Jan. 19, 1953.

Galligan & Foley, Denver, for plaintiff in error.

Barry & Hupp, Denver, for defendant in error.

STONE, Chief Justice.

On August 11, 1952, one John R. Barry filed his verified petition in dependency on the usual printed form in the juvenile court, reciting that he was a resident of the City and County of Denver and attorney for the maternal grandmother of Diane Everett, four years of age, Kathleen Everett, two years of age, and Rita Everett, one year of age, and alleging on his oath as true of his own knowledge that said children were dependent or neglected children, for the reasons that they were dependent upon the public for support; destitute, homeless or abandoned; that they had not proper parental care or guardianship, and all the other grounds contained in said form. At the bottom of the petition there was added the following typewritten allegation:

'Respondent obtained an emergency furlough and brought mother of above-mentioned children, Margaret Everett, and all of above-mentioned children to Denver from Limestone, Maine. Margaret Everett was so ill upon arrival, it was necessary to have her placed in Fitzsimmons General Hospital, Psychopathic Ward. Above-mentioned children, and others have told maternal grandparents that respondent has abused the mother of said children to such an extent that her health was affected. Petitioner asks for legal custody of said children for his client, Margaret Heeren, so that said children cannot be returned to the home of respondent until it is definitely known that a satisfactory home may be provided for them. Petitioner asks the Court to determine what is to the best interest of said children.'

Petitioner prayed that said children be declared and adjudged by the court to be dependent and ordered committed to the State Home for Dependent Children or other institution.

The father of the children, William F. Everett, appeared and opposed said petition. Hearing was had to the court on September 25, 1952, and at its close, without making any findings of fact, the court sustained the petition, adjudged said children to be dependent and ordered them placed in the custody of their maternal grandparents.

The evidence was without substantial conflict. That of petitioner consisted of the testimony of two witnesses. Thomas P. Heeren, the maternal grandfather, testified that his daughter, the mother of the children, had been married to their father for about six years. In July 1952, while they were residing at an army air base in the State of Maine, in response to a telephone call, witness sent his daughter two hundred and fifty dollars 'to come home.' She and her husband and their three children came by plane, arriving about July 17. She was very nervous and upset and could hardly talk. He took the daughter and children to his home and the father promptly went back to Maine. The children continued to remain in his home, but after two weeks their mother was taken to Fitzsimmons General Hospital and placed in the psychopathic ward, where her condition had improved wonderfully and the doctor indicated that she would be in good health again in about three weeks. The children had been receiving perfect care in his nice home. The father gave the Heerens one hundred and fifty dollars before returning to his army base, and sent them another hundred dollars September 6th. They had further received two allotment checks, payable to Mrs. Everett, of one hundred and sixty-five dollars each, making a total of five hundred and eighty dollars received and available for support of the family within ten weeks. Mrs. Heeren had endorsed the allotment checks, chased them, and placed that money in a vault. Witness never had been in the State of Maine and knew nothing about the environment of the children there.

The other witness for petitioner was a younger sister of the children's mother, who testified that upon arrival at the airport the mother could not carry on a coherent conversation and was 'off mentally'; that her condition became worse at her parents' home and she was taken to Fitzsimmons General Hospital where she had improved. Witness had helped care for the children while at the Heeren home, but had never been in the Everett home and knew nothing as to the children's environment there.

Motion to dismiss the petition was made at the close of petitioner's testimony and denied by the court. The father testified that his home was in Florida where his parents still resided. For more than ten years he had been in the United States Air Force, where he held the rank of Master Sergeant at the time of his discharge on September 16th. He had been stationed at an air force base in Maine since April, and prior to that had been stationed at Albuquerque, New Mexico, from July 1951. He had assisted his wife in caring for the children. He had purchased a new Cape Cod style house of six rooms where they lived at the Maine base. On the night of July 10, his wife had a...