Ex Parte De Castro

• Decision Date: 14 December 1945
• Docket Number: No. 26976.,26976.
• Citation: 190 S.W.2d 949
• Parties: EX PARTE GLORIA JEAN DE CASTRO.
• Court: Missouri Court of Appeals

190 S.W.2d 949

EX PARTE GLORIA JEAN DE CASTRO.

No. 26976.

St. Louis Court of Appeals. Missouri.

Per Curiam Opinion filed December 14, 1945.

Habeas Corpus.

CUSTODY OF CHILD AWARDED TO PETITIONER.

Franklin E. Reagan and Sievers & Reagan for petitioner.

Hall & Reaban for respondent.

BENNICK, C.

On October 26, 1945, the court, of its own motion, and by an order duly entered of record, referred this case to the undersigned as Commissioner of the court to hear the evidence, rule on all questions of law, and make a report to the court of his conclusions of law and fact, together with his recommendations. Pursuant to such order, the hearing was had and concluded; and the Commissioner's report is herewith submitted.

This is a proceeding in habeas corpus to obtain the custody of an infant child, one Gloria Jean De Castro, who at the time of the hearing before the Commissioner was two years and seven months of age. The contesting parties are the petitioner, Madelyn De Castro, the natural mother of the child, and the respondent, Theresa De Castro, the child's paternal grandmother.

The matters upon which petitioner and respondent join issue appear from respondent's first amended return and petitioner's answer thereto.

In such return respondent admitted that the child, Gloria Jean De Castro, was then in her custody, and alleged that the child was detained by her as paternal grandmother by virtue of a letter signed both by petitioner and by a deputy probation officer of the Juvenile Court of the City of St. Louis.

Attached to the return as an exhibit (and thereby made a part of the return for all purposes, Laws 1943, p. 371, sec. 44, Mo. R.S.A., sec. 847.44) was a copy of the following letter, written on Juvenile Court stationery on November 8, 1943, addressed to respondent, and signed by Freda Hunt, deputy probation officer, and also by petitioner:

"This letter will give you temporary custody of the above named child, Gloria Jean De Castro. As you know the mother was in this office with you and she willingly consented to you having this child in your home as she is planning to live with an aunt, a Mrs. Jean Greer, 3325 Palmetta Drive, Tampa, Florida, until the father Emil De Castro returns from the Armed Forces."

For further return respondent alleged that she was detaining Gloria Jean "because petitioner is an unfit and immoral person and for that reason is not entitled to custody of said child, in this, to-wit: That petitioner, while married to the father of said child and while the said father was overseas in the Armed Forces of the United States, and before his death, committed incest by living and having sexual intercourse with her own father, Fairey Padgett, causing petitioner to be come pregnant on or about July 1, 1943, by reason of said act or acts, and that petitioner has continued and is now living with said father in the City of Chicago, Illinois".

In her answer to the return, petitioner admitted the allegations of the return respecting the sending of the letter over the signature of Freda Hunt and herself purporting to award the temporary custody of Gloria Jean to respondent.

As for the charge that she had been guilty of incest with her father, Fairey Padgett; that she had become pregnant as the consequence of such conduct; and that she had continued to live and was now living with her father in Chicago, petitioner's answer was as follows:

"Petitioner denies the allegations set forth in Paragraph 2 of said first amended return and states the facts in connection with such allegations to be as follows: That on or about the 12th day of June, 1943, petitioner was criminally attacked by her father, Fairey Padgett, in their farm home about four miles from Waltersboro South Carolina; that petitioner's mother, Eva Ray Padgett, was absent at the time and returned about one hour later; that petitioner immediately informed her mother of the occurrence and was never left alone with her father thereafter.

"Petitioner further denies that she became pregnant as a result of said attack and states that she has never been pregnant except by her husband, Emil De Castro, and then only with her daughter, the above named Gloria Jean De Castro.

"Petitioner further states that she left the home of her father and mother during the first week in July, 1943, and resided in Waltersboro, South Carolina, until the latter part of August, 1943; that on one occasion, about two weeks after she left home, her father accosted her in Waltersboro and threatened to kill her; that about two weeks thereafter, for the reasons aforesaid, petitioner's mother left the said Fairy Padgett and, on August 5, 1943, caused him to be arrested and placed under peace bond; that the said Fairey Padgett was detained and kept in jail until on or about August 10, 1943, at which time petitioner's mother obtained a legal separation from him; that petitioner last saw her father on August 5, 1943, the day of his arrest aforesaid and that she has not heard from him since said date.

"Petitioner further states that she left Waltersboro, South Carolina, in August, 1943, and went to live with the respondent, Theresa De Castro, in St. Louis, Missouri, where she remained until November, 1943; that from November, 1943, until January, 1944, she lived with her aunt, Mrs. Jean Greer, in Tampa, Florida; that from January, 1944, until May, 1944, she lived with her mother in Columbia, South Carolina; that from May, 1944, until September, 1944, she again lived with her aunt, Mrs. Jean Greer, in Tampa, Florida; that from September, 1944, until the present time, she has lived with her grandparents, Mr. and Mrs. Joseph Weyman, in Chicago, Illinois, and that her mother is now living with her in said home."

So much for the issues as made between the parties themselves by their respective pleadings in the case.

There is, however, a still further issue which inheres in the case by reason of its subject-matter. This is the issue of the welfare of the child, which is an issue always to be kept in view in all legal proceedings involving the custody and control of a minor child as to which the State stands in the relation of parens patriae. In other words, whenever a minor child is brought within the jurisdiction of a court for an adjudication with respect to the question of its custody, the child becomes the ward of the court; and in determining the question of its ultimate disposition, the child's well-being is of paramount consideration, and the rights and claims of the contending parties, even in the case of the parents themselves, must be subordinated to what the court may conclude will be for the best interests of the child. [Ex parte Badger, 286 Mo. 139, 226 S.W. 936.]

Nor does it affect the application of this doctrine that the proceeding in which the child's custody is in issue may be, as in this case, a proceeding in habeas corpus, which is basically and essentially a legal remedy. This for the reason that where the writ is availed of for such a purpose, the proceeding is not aimed at freeing the child from some illegal restraint or imprisonment as in the case of the ordinary issuance of the writ, but instead is directed towards securing an adjudication by the court upon the question of what will best promote the well-being of the child, whose custody must be vested in one person or another. In such an instance the nature of the inquiry makes the proceeding one of an equitable nature; and the question of either party's strictly legal right will be measured in terms of the welfare of the child. [Ex parte Badger, supra; 25 Am. Jur., Habeas Corpus, secs. 78-80; 39 C.J.S., Habeas Corpus, sec. 41.]

While the above undoubtedly reflects the general law regarding the scope of the inquiry in a habeas corpus proceeding for the determination of the right to the custody of a minor child, it may be questioned whether, by force of statute or rule of decision in this State, the court's jurisdiction in such matters has been limited so that in a controversy between the natural mother on the one hand and one other than the father on the other, the mere fact of the petitioner's status as natural mother would entitle her to custody as a matter of course, and preclude any investigation into her personal fitness as the same might affect the welfare of the child.

So far as any statute is concerned, the Commissioner has in mind Section 1659, Revised Statutes Missouri 1939, Missouri Revised Statutes Annotated, section 1659, which provides that if, in any habeas corpus proceeding "instituted between husband and wife" for the custody of their children under the age of fourteen years, it shall appear that the party against whom the complaint is brought is unfit to have the care and government of the child or children in controversy, it shall be lawful for the court to award custody to the complainant or other guardian as shall be deemed best in the premises, and to make such other orders touching the custody and control of such child or children as the court may deem proper.

While the section authorizes the court to award the child's custody to the complainant or other guardian "as shall be deemed best in the premises", and in this respect undoubtedly contemplates that in making the award the court shall be motivated by due regard for the welfare of the child, it may be argued that inasmuch as the section is expressly limited in its application to habeas corpus proceedings "instituted between husband and wife", it thereby preempts the field of habeas corpus in child custody cases, and excludes the court's right to consider the question of the parent's fitness in its relation to the welfare of the child in any proceeding other than one which is "instituted between husband and wife".

The context of Section 1659 would seem to indicate that the Legislature, in its enactment, was not in anywise assuming to limit the broad powers of the courts on habeas corpus in child custody cases, but...