Harris, In re
| Decision Date | 13 December 1966 |
| Docket Number | No. 41453,41453 |
| Citation | 434 P.2d 477 |
| Parties | In the Matter of Gary Michael, Robin Lee, Sharon Lynn and Rickie HARRIS. Marcene HARRIS, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. In proceedings under the provisions of Title 20, sec. 821, O.S. 1961, to determine a change of custody of minor children previously determined to be dependent and neglected parties are not entitled to a jury trial.
2. In awarding custody of a dependent or neglected child the court or judge is to be guided by what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare.
3. The right of a parent to custody of his minor child is of great importance in determining right to custody, but it is not an absolute right and is qualified by considerations affecting the welfare of the child.
4. In proceedings to determine the permanent custody of a dependent or neglected minor child, the judgment of the trial court will not be disturbed when it is not clearly against the weight of the evidence nor contrary to law.
Appeal from the judgment of the district court affirming the decision of the juvenile court declining to change the custody of minor children previously adjudged to be dependent and neglected from the Oklahoma Welfare Department to the plaintiff in error, Marcene Harris, the natural mother of the children. AFfirmed.
Wm. O. (Don) Evans, Tulsa, for plaintiff in error.
David Hall, County Atty., Tulsa County, and Ted Flanagan, Asst. County Atty., Tulsa County, for defendant in error.
There is involved here for review the decision of the trial court affirming the decision of the Juvenile Court of Tulsa County awarding the custody of four minor children to the Oklahoma Department of Public Welfare. The plaintiff in error Marcene Irene Harris, mother of the children prosecutes this appeal.
The mother and father of the children will sometimes be referred to as "mother" and "father". The grandparents of the children will sometimes be referred to as "paternal grandparents" or "maternal grandparents".
The children involved here are Sharon Lynn Harris, born March 24, 1955; Gary Michael Harris, born June 11, 1957; Robin Lee Harris, born April 13, 1960; and Rickie Harris, born April, 1962. Rickie died in a foster home during the pendency of this litigation and we are concerned only with the custody of the remaining three children.
Plaintiff in error contends that the trial court erred in not granting her a jury trial. After the case had been called for trial and the first witness commenced testifying, counsel stated orally: "Your Honor, that the petitioner requests a jury trial at this time, which--in order--well, just request a jury trial." This is the first request made for a jury trial either orally or in writing.
The Oklahoma statute creating a juvenile court for hearing matters relating to the custody of minor children specifically provides that the hearing shall be "informal" and "without a jury." Title 20, O.S.1961, § 821 reads:
The appeal here is from an order of the court changing the custody of minor children as distinguished from an order declaring the children to be dependent and neglected. The problem of the custody of these minors has been before the Juvenile Court of Tulsa County for more than eight years. Gary, on petition of the Welfare Department was by order of the Juvenile Court of Tulsa County entered on May 8, 1959, declared a neglected child and custody awarded to the Juvenile Court Shelter. The matter was reviewed on November 19, 1959, and the child returned to his parents but he remained a ward of the court.
Marcene Harris and John Harris, mother and father of the children involved herein, on July 29, 1960, filed a petition in the Juvenile Court of Tulsa County stating that they were unable to provide a suitable home for the children and requesting the court to place the children in a home. The court entered an order placing the children in the custody of the Whitaker State Home at Pryor, Oklahoma, where they remained until December 1, 1960.
They were returned to the temporary custody of the parents but continued to remain wards of the court. They were removed from the custody of the parents and returned to the care and protection of the Welfare Department on August 5, 1963. The juvenile court, at a hearing on January 10, 1964, permanently fixed the custody of the children in the Welfare Department which order was affirmed by the district court on June 30, 1964. This appeal being from an order of the court changing the custody of the children as distinguished from an order determining them to be neglected and dependent, plaintiff was not entitled to a jury trial as a matter of right. Ray v. Woodard, Okl., 377 P.2d 216.
Plaintiff in error contends the trial court erred in not allowing a minor child to testify as a witness. This contention is not assigned as error in the petition in error and is therefore waived. State ex rel. Shull v. Hinkle, 143 Okl. 33, 287 P. 722; Lookabaugh v. Epperson, 28 Okl. 472, 114 P. 738.
In the trial court there was some discussion concerning the Welfare Department being required to produce the children in court. Plaintiff in error did not subpoena the children as witnesses nor offer them as witnesses. At the time of the trial, Robin was four years old, Gary was seven years old, and Sharon was nine years old. As the children were not tendered as witnesses, the trial court made no ruling as to their competency. Such issue is therefore not before us. See Myers v. Diehl, Okl., 365 P.2d 717, 721, 722, citing In re Cully's Estate, Okl., 276 P.2d 250.
Turning now to the merits of the litigation. Plaintiff contends the judgment of the trial court is not sustained by the evidence but is contrary to the evidence and law. In affirming the order of the juvenile court placing the custody of the children in the Welfare Department, the trial court stressed the fact that the mother in several instances had voluntarily surrendered the custody of her children to others.
Her marriage to Harris was the third marriage for Marcene Harris. She first married LeRoy Rutledge. No children were born of this marriage, and it terminated in divorce. Her next marriage to one Dozier also terminated in divorce, but a female child, Barbara Dozier, was born of it. Barbara is now 18 years old and with the consent of her mother has always made her home, and lived, with the mother and stepfather of Marcene Harris.
Three other children not involved herein were born to Marcene and John Harris. John Duwayne Harris was the first. At the age of two, John was delivered by his parents to the custody of Mr. and Mrs. C.D. Harris, the father and mother of John Harris. The child remained with its paternal grandparents until its death from leukemia at the age of 12. Marcene Harris testified that the child was left with his paternal grandparents because he was small and she was having trouble with her husband, John Harris.
Donald Lee Harris, whose date of birth was not established was first delivered to the custody of the parents of John Harris. These paternal grandparents then gave his custody to a couple by the name of Hooper. After a year, the Hoopers adopted Donald Lee. The procedure followed in this adoption is not shown in the record but it may be assumed that the consent of the parents was necessary for the adoption.
James Albert Harris, whose date of birth was not established, was delivered to a couple by the name of Higgins, apparently with his natural parents' consent, and has always made his home with the Higgins. There is nothing in the record indicating his adoption.
Marcene Harris testified that these three children were each babies at the time they were delivered to other parties. She further testified that she wanted to obtain the return of these children but that her husband, John Harris, objected and said that some of them did not belong to him. Two of the children are apparently still in the custody of the parties indicated.
The mother explained that it was necessary for her to surrender the custody of these children to others because of conflicts with her husband and she felt the children's best interests would be served by delivering their custody to others.
In 1960, this mother joined with their father in voluntarily surrendering the custody of the children involved herein to the care of the Welfare Department. She stated that she and her husband were quarreling and drinking and she did not feel she was able at that time to provide a suitable home for them.
The paternal grandparents of the children, C.D. Harris and Mamie Harris, testified that during the years 1961-1962-1963 they observed their son John Harris in his home and also in the home of the witnesses. He drank excessively at times and Marcene drank with him. The witnesses observed both Marcene and John on several occasions when they both were intoxicated. The children were healthy, but unruly, and hard to discipline. John and Marcene would be away from home on trips about four or five times each year. On some of these occasions, the children would be left in charge of a baby sitter or placed in nurseries. On one occasion a baby sitter, Bess Wilson, called the grandmother in an attempt to locate the parents. While engaged in drinking bouts, the parents would quarrel and curse...
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