Hendrick v. Voss

• Court: Texas Civil Court of Appeals
• Writing for the Court: DIXON
• Citation: Hendrick v. Voss, 334 S.W.2d 308 (Tex. Ct. App. 1960)
• Decision Date: 25 March 1960
• Docket Number: No. 15582,15582
• Parties: Mary Ann HENDRICK, Appellant, v. Roy Glenn VOSS et ux., Appellees.

Page 308

334 S.W.2d 308

Mary Ann HENDRICK, Appellant, v. Roy Glenn VOSS et ux., Appellees.

No. 15582.

Court of Civil Appeals of Texas, Dallas.

March 25, 1960.

Daugherty, Bruner & Kelsoe, Dallas, and Moses & Truett, McKinney, for appellant.

Matthews, Aultman & Riley, Fort Worth, for appellees.

DIXON, Chief Justice.

Appellant Mary Ann Hendrick instituted habeas corpus proceedings to recover custody of her child from appellees Roy Glenn Voss and wife Lareda Ruby Voss. Appellees filed an answer and a cross-action alleging the infant child had been abandoned by appellant, and praying that it be declared a dependent and neglected child.

After a trial before the court without a jury judgment was rendered September 2, 1958, declaring the child to have been dependent and neglected since August 1, 1957; finding appellant not to be a fit and proper person to have custody; finding appellees to be fit and proper persons to have care and custody; and remanding the child to the custody of appellees.

Facts:

The nature of appellant's points on appeal requires that we present a rather full statement of the evidence adduced at the trial, especially the testimony of appellant.

The child, a boy, was born March 29, 1957, in Collin County, Texas. Appellant testified that she had supposed she was married to a man she knew as Staff Sergeant Howard Goins, stationed at Sheppard Air Force Base at Wichita Falls, Texas. She had gone from McKinney, Texas, to Wichita Falls for the wedding. She afterwards learned that the person who performed the ceremony was not really a minister of the gospel, and that the purported marriage license was not genuine. She has not seen Goins since July 1956.

Appellant, 25 years of age at the time of the trial, had been twice married and divorced before she went through the false ceremony with Goins. Her first marriage, at the age of 16 or 17, lasted only three months. By her second husband, Gilbert Nix, of McKinney, Texas, she had one child, who was about six years old at the time of the trial. She was divorced from Nix in April 1956. There has been continued strife between appellant and Nix concerning the care and custody of their son. Appellant is now married to her fourth husband, Harold Hendrick.

Following the birth on March 29, 1957, at a McKinney Hospital of the baby who is the subject of this litigation, appellant returned to the home of her parents, who live about seven miles from McKinney. In June or July 1957 she moved to the Crawford Apartments in McKinney. The landlady at the apartment took care of the baby while appellant worked during the day at a beauty shop in Farmers Branch, Texas. Soon thereafter appellant moved to Dallas, where she lived in various places, changing her address frequently. Among other places in Dallas where appellant lived was a house on Denton Drive across the street from the North Temple Baptist Church, of which Dr. C. E. Colton was pastor.

Appellant did not know Dr. Colton, but sometime in July she went to see him for consultation and advice about the baby. She was worried because the baby was not receiving proper care and attention at the Crawford Apartments. For one thing he was broken out with a heat rash. Further, she herself was not in a position to assume full responsibility for his care and custody.

Appellant and Dr. Colton discussed her situation and agreed that the baby should be placed in the care and custody of suitable persons for adoption. Accordingly a few days later appellant brought the baby to the church and surrendered possession of him to Dr. and Mrs. Colton. The child was then turned over to appellees, who took him with the intention of adopting him after the lapse of six months.

At the time appellant gave up the baby she knew that she was permanently surrendering his care and custody to others. She did not know who was going to take permanent care and custody of him. But whoever they might be, she said that she would not bother them.

A few days after appellant surrendered possession of the baby to the Coltons, Ralph Churchill prepared a document for appellant to sign. Appellant refers to this document as a release. On August 1, 1957, appellant signed the instrument under the terms of which she surrendered physical possession of the baby to appellees and consented for them to adopt him without further notice to her. The names of appellees were written in after appellant had signed and acknowledged the document before a notary public.

On October 7, 1957, appellant married Harold Hendrick, her present husband. At first they lived in his home in Dallas. But appellant's six year old son was unhappy, so they moved to the property owned by appellant's parents and her sister about seven miles from McKinney.

At the time of the trial, Harold Hendrick, appellant's present husband, was employed in Dallas at the Superior Bowling Lanes. He traveled back and forth daily between Dallas and their home near McKinney. Appellant meantime has been employed from time to time in various beauty shops. At one time she worked part time as a waitress in the Pilot Lounge after finishing her day's work at a beauty shop. At the time of the trial appellant was working in a beauty shop in McKinney.

Appellant, her husband and her son now live in a small house on the tract of land where her parents live. Pictures of it were introduced into evidence. It is a small neatly furnished cottage of open construction, with planter boxes dividing the sleeping, living, cooking and dining areas.

There is another and larger house on another part of the tract abut 50 feet from appellant's house. The parents operate a rest home for aged persons in the larger house. While appellant and her husband are away during the day, the six year old boy is cared for by appellant's parents and a colored girl employed by appellant.

In October 1957 soon after she married Hendrick, appellant and her former husband Nix, father of her six year old boy, had a difficulty concerning the boy, during which difficulty she shot and wounded Nix. About two hours before the shooting she had bought a pistol from a police officer. Appellant says that Nix shot at her six times. However, appellant was arrested and taken to jail immediately after the shooting. She was charged with assault to murder. Later, after the charge was reduced to aggravated assault, she pled guilty and paid a fine.

On the day before the trial of the present case, appellant and Nix became involved in a heated argument again about their boy. Appellant testified that she couldn't stand the torment and torture Nix was putting her through. In this connection we quote from her testimony:

'Q. All right. Now, did you make any other threats to him about killing him? A. I have never threatened to kill him. No, sir, I have never threatended to kill him.

'Q. Do you feel that you have sufficient control now, that you won't again do what you were charged with doing before, that is, shooting at him or something? A. I think Mr. Nix had his warning, I think he will leave me alone, I feel in no danger from him any more. He should have learned his lesson.

'Q. All right. And if he doesn't, did you have in mind doing the same thing again? A. I don't have in mind of bothering him in any way, I just want him to leave me alone, and I am sure he will.'

Once when a youngster appellant was summoned to jail about a matter, but no charge was filed. On another occasion appellant and her cousin were arrested in Austin, Texas. They had become involved with a carnival man and his mother. Appellant's mother and father had filed a complaint against the carnival people. Appellant did not remember the details of this episode, or why she and her cousin were picked up by the Austin Police.

In November 1957 appellant had her attorney write a letter withdrawing and cancelling her release of the baby and her consent for its adoption.

Thereafter she filed a habeas corpus proceeding against Ralph Churchill, who did not have possession of the baby, but at a hearing was required to disclose the names of the appellees who did have possession. The present habeas corpus proceeding was then filed against appellees.

After appellant had finished her testimony, Ralph Churchill, an attorney at law, was called as an adverse witness.

There was no real conflict between the testimony of appellant and Churchill. The attorney testified that before appellant signed the release and consent for adoption, he fully explained the document and its legal significance to her. On this point appellant testified she did not remember what he said, but she does not deny Churchill's statement. We quote from her testimony:

'Q. Now, Mrs. Hendrick, isn't it a fact that Mr. Churchill very carefully and voluntarily explained to you the instruments that you signed? A. I will say that if he says he did, I say he did, too, I do not remember what we discussed. I remember signing the things, and other than that, that is it. * * *

'Q. He didn't use any persuasion or any power over you, did he, Mrs. Hendrick? A. No, sir, he did not.

'Q. And he treated you very courteously, did he not? A. I suppose he did.

'Q. And did he explain very carefully to you everything that he had there, did he not? A. If he said he did, he did. * * *

'Q. Did you know Mr. Churchill was coming out there to see you when he came? A. I don't know, I believe that he called.

'Q. And didn't he tell you that he was bringing some papers for you to sign? A. I believe so.

'Q. So you knew that he was coming and you were to sign some papers, did you not? A. Yes.

'Q. And you knew that those papers were related to the question of your child and its custody being placed with other people? A. Yes, sir.

'Q. Now, Mr. Churchill explained carefully to you that it was a permanent situation, did he not? A. I suppose he did, as I told you sir, I do not remember it--any of the conversation.'

After Churchill finished his testimony appellant rested...