Ex parte Shelton

• Decision Date: 15 June 1932
• Docket Number: 651.
• Citation: 164 S.E. 332,203 N.C. 75
• Parties: Ex parte SHELTON.
• Court: North Carolina Supreme Court

164 S.E. 332

203 N.C. 75

Ex parte SHELTON.

No. 651.

Supreme Court of North Carolina

June 15, 1932

Appeal from Superior Court, Haywood County; Stack, Judge.

Proceeding on the petition of Effa Burnette for a writ of habeas corpus directed to E. P. Haynes and wife to obtain the custody of Dorothy Jean Shelton, a minor. From a judgment denying the petition, but granting petitioner permission to visit the child, petitioner appeals.

Reversed.

Law recognizes natural right of parents to custody and control of infant child.

This is a proceeding on the return to a writ of habeas corpus issued upon the petition of Effa Burnette.

The petitioner is the mother of Dorothy Jean Shelton, who is now about 3 years of age. She was born in the city of Asheville N. C., on February 28, 1929. At the date of her birth, her mother, the petitioner, was not married. Soon after her birth, the petitioner with her infant child went to the home of the respondents, E. P. Haynes and his wife, Amy Haynes, in the town of Canton, N. C., where she and the said child remained until the child was about 6 months of age. During this time, the petitioner by her services in the home of respondents earned her board and lodging for herself and child, at the end of 6 months the petitioner left the home of the respondents and returned to the city of Asheville, where she has since resided. She left her infant child in the custody of respondents, because at that time she had no home into which she could take the child. From time to time she visited the child in the home of the respondents, and at all times has manifested her interest and affection for her. On September 12, 1931, the petitioner was married to Harold Burnette, in the city of Asheville, and now resides in said city with her husband. Both she and her husband, who is not the father of Dorothy Jean Shelton, are able and willing to provide a suitable home for the child, where she will be under the care and in the custody of her mother, the petitioner.

The respondents have refused to surrender the child to the petitioner, contending that they have the right to her custody under and by virtue of an order of adoption, made by the clerk of the superior court of Haywood county, on June 4 1929, in a proceeding instituted before said clerk by the respondents for the adoption by them of said child. The petitioner, the mother of said child, was not a party to said proceeding, and alleges in her petition that for that reason the order under which the respondents claim the right to the custody of Dorothy Jean Shelton is void.

The respondents in their answer to the petition admit that the petitioner was not a party to the proceeding in which the order of adoption under which they claim the right to the custody of the child, was made, but allege that said proceeding was instituted at the request and said order was made with the consent of the petitioner. They allege that relying upon said order, they have had the care and custody of said child, and that both the respondents are now greatly attached to her, and desire to retain her in their custody that they may fully perform their duty to said child.

After hearing the evidence offered by both the petitioner and the respondents, the court rendered judgment as follows:

"This cause coming on to be heard before His Honor, A. M. Stack Judge Presiding, and holding said term of Court, and the same being heard upon the petition filed by Effa Burnette for the possession of Dorothy Jean Shelton, under a writ of habeas corpus issued in said cause, and upon the answer filed by the respondents, E. P. Haynes and Amy Haynes, and after hearing the petition and answer, and all the evidence offered by both the petitioner and the respondents, the Court finds the following facts, to-wit:

"That in the month of February, 1929, the petitioner gave birth to an illegitimate child, the same being the child in question, in the Mission Hospital in the City of Asheville; that thereafter, the said mother and child were brought to the home of respondents in the Town of Canton, when the child was about a month old; that petitioner gave her name at said time as Mrs. Shelton, but later it was ascertained that her true name was Effa Metcalf; that said Effa Metcalf remained in the home of said respondents most of the time until August, 1929, when she went away and left the child in the care, control and custody of the respondents; and that since said date, the said Effa Metcalf, now Mrs. Effa Burnette, has not contributed anything to the support and maintenance of said child, except a few clothes and some presents.

"That on the 12th day of September, 1931, the said Effa Metcalf married Harold Burnette who is not the father of said child; that she and her said husband are now residing in West Asheville; that her said husband has regular employment with Allport Storage Company, and makes approximately $25.00 per week; that the petitioner has employment, and is making $12.50 per week; that the said petitioner and her husband have no property except about $50.00 in money. The Court finds as a fact that the said Effa Burnette is a woman of good character at this time, and also that her said husband is a man of good character, and that both said parties are regular church attendants.

"The Court further finds as a fact that the said E. P. Haynes and his wife, Amy Haynes, are people of excellent character; that they live in the Town of Canton, N. C., and are worth approximately the sum of four to five thousand dollars; that they have a good home and live near good schools and churches. The Court finds as a fact that for almost three years the said respondents have taken care of, provided for, looked after and rendered everything necessary to the comfort, health and happiness of the said Dorothy Jean Shelton.

"The Court further finds as a fact that the said Mr. and Mrs. E. P. Haynes have been married about 25 years, and have no children of their own; that they are very fond of said child, and love it as if it were their own, and the Court finds as a fact that they are well qualified both morally and financially to have the permanent care, tuition and control of the said Dorothy Jean Shelton.

"The Court further finds as a fact that the said E. P. Haynes and...