Gibbons, In re

• Decision Date: 21 November 1956
• Docket Number: No. 460,460
• Citation: 245 N.C. 24,95 S.E.2d 85
• Parties: In re Guy A. GIBBONS, Jr.
• Court: North Carolina Supreme Court

Page 85

95 S.E.2d 85

245 N.C. 24

In re Guy A. GIBBONS, Jr.

No. 460

Supreme Court of North Carolina.

Nov. 21, 1956

J. L. Emanuel, Raleigh, Hill Yarborough, Louisburg, and Robert L. Emanuel, Raleigh, for petitioner appellant.

Manning & Fulton, Raleigh, for respondent appellee.

RODMAN, Justice.

Guy A. Gibbons, Jr. was born April 26, 1947. Adoption proceedings were initiated by Guy A. Cibbons, Sr. and wife, Rebecca Gibbons, on February 23, 1948, and final order of adoption was entered April 30, 1949. In June 1949 Rebecca Gibbons died. Following her death, the child was taken to Miss Ruth Lindley, who lived at Guilford College. Miss Lindley, a sister of Mrs. Gibbons, was a school teacher. She was unable to care for the child after the school opened in September. Hence the child was returned to the respondent in Raleigh. He placed the child in the home of Mrs. Ralph Turner, who operated a boarding home for children. When the child had been at the boarding home about two weeks, Mrs. Turner notified respondent that she could not continue to keep the child, whereupon she was directed to find a suitable home for the child. Pursuant to this direction, Mrs. Turner placed the infant with the petitioner, Richard Bright, in September 1949. The infant remained in the home of petitioner and his wife, except for short visits to respondent, until August 1, 1954. On that date, respondent and another man went to New Hope Baptist Church while Sunday School was in session and forcibly took Guy Gibbons, Jr. from the Sunday School where he had been sent by the petitioner and his wife. For this, respondent was indicted and convicted of disturbing religious worship.

Respondent made small contributions to the support of the infant in 1949, 1950, and 1951. No contributions were made thereafter while he was in the custody of petitioner.

In September 1952 respondent married Harriet Scott, a lady of excellent character. Respondent and his wife live in Raleigh. Mrs. Gibbons is regularly employed with the probation office of the Federal Government.

The court found that the petitioner and his wife are both of excellent character. Petitioner is employed as a professor in the Chemical Engineering Department of North Carolina State College and has been so employed for many years. Petitioner and his wife are active in church, educational, and community life of their community, own their own home, have no children of their own, and plan, upon their death, to leave their home to Guy A. Gibbons, Jr. The court further found:

'That the home life of Guy A. Gibbons, Jr. while he lived with Mr. and Mrs. Bright was happy and cheerful and the said Mr. and Mrs. Bright took particular pains to see that he appeared neat, clean, and saw to it that he was given proper medical attention at all times.'

'That Guy A. Gibbons, Sr. is not a man of bad character. He owns his own home and he is the owner of and engaged in the business of operating a service station and a small nursery on U. S. Highway No. 1 about seven miles north of Raleigh and near the Millbrook community.'

'That from the time of the death of his first wife, Rebecca L. Gibbons, in 1949, until a few months ago the said Guy A. Gibbons, Sr. was addicted to the excessive use of alcohol to such an extent that he frequently became intoxicated and he became a member of Alcoholics Anonymous.'

Then follows a finding that respondent was convicted of a misdemeanor relating to the operation of an automobile in each of the years 1950, 1951, and 1952. 'That except as hereinabove set forth said Guy A. Gibbons, Sr. has been a law-abiding citizen, has attended church regularly, engaged continuously in business in Wake County, North Carolina for several years and does not appear to have any vices except an addiction to excessive use of alcohol.'

The court made these additional findings, each of which was excepted to by petitioner:

'That during the time the said child has lived with Mr. and Mrs. Gibbons, Sr. since August 1, 1954, he has progressed normally in his physical development, in his school grades, and in his aptitudes; however, the child appears to be uncertain as to what his proper attitude should be as between the petitioner and the respondent, due to their conflict of interest in seeking complete custody and control of said child and said child freely admits his desire to live with Mr. and Mrs. Richard Bright due to the fact that they furnished more clothes for him, provided him with more toys and playground equipment, And Do Not Punish Him When He Misbehaves; Whereas, On The Contrary, The Gibbons Do Punish Him When He Misbehaves). (Emphasis by Hamilton H. Hobgood).'

'That this Court has held three conferences in chambers with Guy A. Gibbons, Jr. without either Mr. or Mrs. Bright or Mr. or Mrs. Guy A} Gibbons, Sr. Being present, this being done with the view of obtaining full knowledge of the child's problems and attachment with reference to the petitioner and the respondent.

'That the respondent Guy A. Gibbons, Sr. and his wife, Harriet Scott Gibbons, are fit, suitable and proper persons to have the care, custody and control of Guy A. Gibbons, Jr., the adopted child of Guy A. Gibbons, Sr.; and the Court further finds as a fact that Guy A. Gibbons, Sr. has a comfortable home and finds, further, that Guy A. Gibbons, Sr. and his wife, Harriet S. Gibbons are giving said minor child, Guy A. Gibbons, Jr., proper instruction and supervision to the extent as to promote a wholesome and proper development of said minor child and to instill in him social, moral and religious principles and at the same time properly control his conduct in his daily activities so that he may develop as a normal child and be better prepared to meet the normal problems with which he will be faced upon reaching adulthood; and the Court further finds as a fact that Guy A. Gibbons, Sr. and his wife, Harriet S. Gibbons, are giving said child such care as to promote his best welfare, interest and development.'

The crucial question in this case, as in all cases involving the custody of an infant, is: What, in fact, is for the best interest of the child? Schenck, J., in Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144, 146, said: 'In determining the custody of children, their welfare is the paramount consideration. Even parental love must yield to the claims of another, if, after due judicial investigation, it is found that the best interest of the...