Herrera v. Herrera

• Decision Date: 07 December 1966
• Docket Number: No. A--11502,A--11502
• Citation: 409 S.W.2d 395
• Parties: Victor HERRERA and wife, Margarita Herrera, Petitioners, v. Anita B. HERRERA, Respondent.
• Court: Texas Supreme Court

Page 395

409 S.W.2d 395

Victor HERRERA and wife, Margarita Herrera, Petitioners, v. Anita B. HERRERA, Respondent.

No. A--11502.

Supreme Court of Texas.

Dec. 7, 1966.

Stovall & Stovall, Plainview, for petitioners.

John J. Herrera, Houston, John B. Stapleton, Floydada, Philip M. Shafer, Houston, for respondent.

GRIFFIN, Justice.

This is a child custody suit in the District Court of Floyd County, Texas. Relator, Anita B. Herrera, the mother of Johnny Herrera, filed a habeas corpus proceeding alleging that Respondents Victor Herrera and wife, Margarita Herrera, the paternal grandparents, were illegally confining and restraining Johnny Herrera of his liberty. Anita further alleged that no court order had ever been entered depriving her of custody of her child and that she had not voluntarily surrendered the care or custody of the child to anyone. A hearing was had before the court without a jury, and after such hearing the trial court found that Anita Herrera and Victor Herrera and his wife, Margarita, were each a fit and proper person to be awarded the custody of Johnny. The court further found '* * * based upon the evidence produced in this cause, and the circumstances of this particular case, it is for the best interest and welfare of the minor, Johnny Herrera, that his custody be placed with the respondents, Victor and Margarita Herrera,' subject to the right of reasonable visitation in Anita.

Anita appealed to the Court of Civil Appeals, and that court reversed the trial court's judgment and awarded custody of Johnny to his mother, Anita. 402 S.W.2d 782. The Court of Civil Appeals said that as a matter of law Anita was entitled to the custody of Johnny because she was his natural mother, and the trial court found that she was a fit and proper person to have custody of him and found nothing disqualifying her. The grandparents are the petitioners for writ of error in this Court.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

When Anita filed her application for writ of habeas corpus and had the child, Johnny, brought before the court on the writ, the court took jurisdiction of the person of the minor to adjudicate his custody. Mumma v. Aguirre, Tex.Sup., 364 S.W.2d 220, 221 (1963); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79, 81--82 (1953); Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894); Davis v. Sears (Comm'n App., 1931), 35 S.W.2d 99; Hendricks v. Curry, Tex.Sup., 401 S.W.2d 796, 802 (1966).

The legal custody of a minor is in the parents or the surviving parent, Unless there has been a court adjudication awarding the legal custody to a third party. Of course, a court, under certain circumstances such as the voluntary surrender of possession of the child to another coupled with continuance of such possession for a substantial period of time, may terminate the custody rights of the parent when it is in the best interest of the child to do so. Knollhoff v. Norris, supra; Legate v. Legate, supra; Hendricks v. Curry, supra; Duckworth v. Thompson (Comm'n App.), 37 S.W.2d 731 (1931), for an excellent discussion of this problem.

There is a presumption that the interests of a minor are best served by award of its custody to its natural parents. The burden of proof upon the issue of the best interest of the child is upon the one seeking to drprive the natural parents of custody. Gunn v. Cavanaugh, Tex.Sup., 391 S.W.2d 723, 726 (1965); Mumma v. Aguirre, supra; Taylor v. Meek, 154 Tex. 305, 306, 276 S.W.2d 787, 789 (1955).

The trial court's judgment in determining the best interests of the child and in awarding its custody in accordance with this determination 'should be reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him.' Mumma v. Aguirre, supra; DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 694--695 (1944); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 791 (1955).

Petitioners Margarita and Victor Herrera assign error to the holding of the Court of Civil Appeals that as a matter of law the mother, Anita Herrera, is entitled to the custody of her child, Johnny, because the trial court affirmatively found Anita to be a fit and proper person to have custody of Johnny. They also assert that the trial court did not abuse its discretion in awarding custody of Johnny to Margarita and Victor. Anita, as respondent, asserts by counter-point of error that there is no evidence to support the trial court's judgment, and that the trial court abused its discretion by the judgment entered.

Margarita Herrera, the grandmother, testified through an interpreter, to the following events surrounding her physical possession of Johnny. The natural parents, Jesse and Anita, told Margarita before the baby was born that she could have it. When the boby, Johnny, was two months old she took him into her home, near Plainview, at the request of the parents and he has lived there at all times since. The parents also stayed in the home a month, but Jesse was then sent to the penitentiary. Anita, with her daughter, went to Wharton to live with Anita's parents. Jesse was in and out of the penitentiary until two or three months prior to an industrial accident near Alpine, Texas, on February 22, 1965, in which he was injured and from which he died on February 24, 1965. This was almost eight years after he and Anita left the child with Margarita. During this time Anita neither visited nor wrote to Johnny or his grandparents.

Margarita testified further that about three years prior to Jesse's death Anita filed suit for divorce and custody of the children. At this time Jesse was in the penitentiary, and Anita was still living with her parents in Wharton. Anita telephoned Margarita and asked for the return of Johnny. This prompted Margarita to go to Wharton to get Anita to give written consent for Johnny's adoption. Anita's father, in the presence of Anita, said it wasn't necessary to sign any papers, and she signed none. During the period of events described above neither of the natural parents contributed to the support of Johnny.

Anita Herrera, also testifying through an interpreter, gave her version of the events as follows. She did not give the baby to his grandparents, rather she and Jesse agreed that the grandparents should keep the child while Jesse was in the penitentiary. The purpose of the agreement was to ease the support problem of Anita and her children. In the event of Jesse's death she was to take the child from the grandparents (she did not testify that the grandparents were parties to the agreement or knew of its existence). Anita said that she had received an award from the Industrial Accident Board as a result of Jesse's death and she is now able to support and educate Johnny. She also said she did not visit Johnny until May 1965, because prior thereto she did not have the money to make the trip. In May 1965, she, along with an attorney and witness at the trial, Guadalupe Torres, went from Houston, her present home, to Johnny's school in Floydada and talked with Johnny. Johnny did not know her and said that his grandparents told him his mother and father were dead. She asked Johnny to come live with her and his two sisters, but he would not agree to this.

A consideration of the two environments involved is now in order. Guadalupe Torres testified to the type of home offered by Anita. Guadalupe lives with Anita and her two daughters in Houston. Guadalupe's grandmother also lives with them and takes care of the children while Guadalupe and Anita are at work. Guadalupe and Anita have jobs in a Houston factory at a wage of $1.25 per hour. The children are well dressed, well cared for, and are enrolled in a school in Houston in which they attend English-speaking classes.

The environment offered by the grandparents was testified to by Margarita and several school officials from the school which Johnny attends. Margarita said that she, her husband, and Johnny live in a ...