Ex Parte Summers
| Decision Date | 10 March 1921 |
| Docket Number | 4756 |
| Parties | IN THE MATTER OF THE APPLICATION OF NEVA SUMMERS, by Ray P. Summers, her guardian, for Writ of Habeas Corpus. |
| Court | South Dakota Supreme Court |
IN THE MATTER OF THE APPLICATION OF NEVA SUMMERS, by Ray P. Summers, her guardian, for Writ of Habeas Corpus. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. John Medin, Judge #4756--Reversed Bailey & Voorhees, Mather & Stover Attorneys for Appellants. George J. Danforth Attorney for Respondents. Opinion filed March 10, 1921; Rehearing denied May 11, 1921
Habeas corpus to determine custody of a minor child. Julia Helgemoe was a professional nurse, and for several years had been a warm personal friend of, and for more than a year had lived with, the family of Robert Evans, at Watertown, without charge, and quite as a member of the family, when she married plaintiff, Ray P. Summers. On April 24, 1914, a child; Neva, was born to them. In May, 1915, the mother, Julia, became ill, and at her request Mrs. Evans took care of the child. The mother died on June 25, 1915. The father, Ray P. Summers, consented that the child remain with Mrs. Evans. She asked him to give her the baby. He did not consent to this, but told her he would pay for caring for it. She said she wanted the baby, not pay for keeping it. For several years before his wife's death, and at that time, he had employment in Watertown. He remained there for about a year and a half after his wife's death, during which time he visited the Evans home frequently, and paid Mrs. Evans some $20 or $25. At the end of that time, the firm he was with went out of business, and he found it necessary to seek employment elsewhere. He found employment in another state as a salesman for a firm of lye manufacturers, whose business was stopped by the war. He then found employment at Port Huron, Mich., with a company manufacturing war materials; government agents, supervising the work, required all employees to take oath that they would not leave such employment until their duties ended, and plaintiff was refused permission to return to South Dakota to visit the Evans home and his child.
During this time, and without his knowledge, the Evans family had moved to Sioux Falls, and letters written to them at Watertown were returned. He ascertained their Sioux Falls residence through attorneys whom he employed for that purpose, and at once wrote Mrs. Evans at Sioux Falls, telling her he had written several letters which had been returned, and had sent two packages, one in November and one in December, 1918; that he was married again, had a home and wanted his child. In June, 1919, his letter being unanswered, his present wife wrote Mrs. Evans, ands received a postal card in reply, saying that letters from Ray, had not been received; that she would write him later; that Neva was well. She never wrote him. In December, 1919, he again wrote Mrs. Evans, saying, in substance, that she had treated him unfairly; that he wanted Neva, and unless she answered his letters he would have to come to Sioux Falls to get her. This letter was unanswered. But during this time, on March 19, 1919, and without any notice to him, the Evans filed in the county court of Minnehaha county, a petition for adoption of the child, alleging that her father had deserted and failed to support her, and the court without his knowledge, on March 20, 1919, entered an order of adoption, and directed that the child's name be changed from Neva Summers to Neva Faye Evans.
Immediately upon being advised of these proceedings, plaintiff applied for and obtained this writ. The trial court made and entered findings, conclusions, and judgment favorable to defendants and plaintiff appeals. The material questions raised by the assignments of error relate to the sufficiency of the evidence to sustain findings of fact.
The trial court found that appellant had been guilty of "a course of conduct that amounted to abandonment" of his infant daughter. We are of the view that such finding is contrary to, and is not supported by, the evidence. It is undisputed that appellant obligated himself to pay respondents for the care and maintenance of the child, and he never consented to surrender or abandon his right to its custody and control; and although for two years or more he did not visit the Evans home or his child, he wrote frequent letters of inquiry, and, failing to receive any reply from respondents, finally employed attorneys to assist him in ascertaining their place of residence, and on every occasion reiterated his desire to have Neva with him, especially after he had married again and had established a home for himself and family. The state of mind thus clearly evidenced negatives the existence of an intent to abandon the child.
A most careful consideration of the record compels the conclusion that this finding is not supported by the evidence. The undisputed evidence discloses that appellant is sober and industrious, and has no vicious or immoral habits or associations. Practically the only criticism sustained by the evidence is that he failed to pay respondents for the care and maintenance of the child; but that fact does not establish the conclusion that he is not a suitable and proper person to have the care, custody and control of his own child. It is undisputed that the insurance money which came to him upon his wife's death was expended in payment of expenses incident to her illness and death and his own illness and because of his inability to work for a considerable time because of eye trouble. He appears to have held, in recent years, various positions involving important responsibilities, in which no failures are recorded against him.
In Re Wilson (N. J. Ch.) 55 Atl. 160, the court said:
"The permanent happiness of a child under eight years of age is not likely to be affected by a change of custody from one person who loves her to another who will naturally treat her with kindly consideration until association shall have developed her affection for her new caretaker."
And in Parker Wiggins (Tex. Civ. App.). 86 S. W. 788, the court said;
"Nor will the attachment of the child to its foster parents, by reason of kind treatment and association, be given serious consideration, unless the effort to reclaim it has been delayed until the child has reached that age where the presumption may be indulged that it is capable of forming and has formed a lasting affection for those to whom it is indebted for reciprocal love and maintenance, and that the sundering of such ties will subject to serious hazard its interest and happiness."
In Wilcox v. Wilcox, 14 N. Y. 575, a child less than a year old was placed with the father's father and remained there until she was nine years old; the father died, and, the mother then having ample means, the child was awarded to her. The court said:
"The fact that the child prefers her grandfather to her own mother and her own sister is an argument for changing her home, that her affections may be restored to their natural channel."
In U. S. v. Sauvage (C. C.) 91 Fed. 490, the court said:
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