In re Lambert

• Decision Date: 24 June 1938
• Docket Number: 2040
• Citation: 80 P.2d 425,53 Wyo. 241
• Parties: IN RE LAMBERT ET AL.; v. PLACE LAMBERT
• Court: Wyoming Supreme Court

80 P.2d 425

53 Wyo. 241

IN RE LAMBERT ET AL.;

LAMBERT v. PLACE

No. 2040

Supreme Court of Wyoming

June 24, 1938

ERROR to the District Court, Johnson County; HARRY P. ILSLEY Judge.

Proceeding by Emma Place for award of the care and custody of Emma Jacqueline Lambert and Joyce Janith White, minors, to petitioner or some suitable guardian other than their mother Marie Lambert. To review an order awarding the minors' custody to the State Board of Charities and Reform, Marie Lambert brings error.

Affirmed.

For the plaintiff in error, there was a brief and oral argument by William B. Cobb of Casper, Wyoming.

This action involves the custody of minor children. We believe the question to be governed by Chapter 50, Session Laws of Wyoming for 1933. The trial court was without jurisdiction until the foregoing statute had been complied with. The record fails to show that it was complied with. Clearly, the testimony was insufficient to show that the home surroundings of the children were either immoral or that they were surrounded by vicious and corrupt influences. Children of tender age are better off in the custody of their mother than in a public asylum. The overwhelming weight of authority supports this proposition. Only in cases of very gross misconduct will courts interfere with paternal rights. 46 C J. 1242. See also Peese v. Gellerman, 110 S.W. 196 and the dissenting opinion therein. We also cite the case of Waldron v. Childers, 148 S.W. 1030. It is of course true that cases arise in which a parent should be deprived of the custody of his child. Waters v. Gray (Mo.) 193 S.W. 33. This court in Nugent v. Powell (Wyo.) 33 P. 23 supports the same principle. See also People v. Woolston, 239 N.Y.S. 185; Pierce v. Jeffries, 51 A. L. R. 1502; State ex rel. Wood v. Deaton, 54 S.W. 901; In re Stanley's Guardianship, 225 P. 656; Wilson v. Mitchell (Colo.) 111 P. 21; Ex Parte Smith (Mo.) 200 S.W. 681. Upon the whole case therefore, we submit that the trial court was without jurisdiction to award the custody of the children in this case to the State Board of Charities and Reform; that the best interests of the children would be subserved by leaving them with their mother. The order made by the trial court should be reversed.

For the defendant in error, there was a brief and oral argument by William C. Holland of Buffalo.

The objection that failure to give notice can only be raised by the State Board of Charities and Reform is without merit. Chapter 50, Laws 1933 is directory and not mandatory. 25 R. C. L. 767; Allen v. Lewis (Wyo.) 177 P. 433; In Re Metcalf's Estate (Wyo.) 282 P. 27. It will be presumed that the court was acting regularly and within its jurisdiction, in the absence of a positive showing to the contrary. 15 R. C. L. 875; Holt v. City of Cheyenne, 22 Wyo. 212. As to the other assignment of error, we will concede that the law provides that a child will not be taken from its natural parent except for the most cogent and compelling reasons. Nor will immorality in itself be sufficient in all cases to deprive the mother of the custody of her children, but when this is coupled with other acts of neglect and cruelty, it affords ample grounds for taking a child from the custody of its mother. We submit that this has all been shown by the evidence in this case. The state has an interest in this case. Sec. 20-501, R. S. This obligation is recognized by requiring the County Attorney to appear on behalf of a petitioner. And furthermore, Chapter 117, Session Laws 1933 provides for a state institution under the control of the State Board of Charities and Reform. A finding of fact or judgment by the lower court supported by the evidence will not be disturbed on appeal. King v. Richards-Cunningham Co., 46 Wyo. 355 and cases cited. The credibility of witnesses who have given conflicting testimony is for the trial court. Caswell v. Ross (Wyo.) 188 P. 977; Wettlin v. Jones (Wyo.) 234 P. 515; Bank of Riverton v. Northern Trust Company (Wyo.) 270 P. 163; Gould v. Jones, 43 Wyo. 161. The trial court having had the parties before it and having heard the testimony, the appeal of the plaintiff in error should be dismissed.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This case brings here for review by proceedings in error the propriety of an order of the district court of Johnson County awarding the custody of two minor children, aged about seven and three years respectively at the time the cause was heard, to the State Board of Charities and Reform of this State. The course of events in the court named antecedent to the final disposition of the matter aforesaid is as follows:

On August 14, 1935, Mrs. Emma Place, now the defendant in error, filed in said district court her verified petition setting forth in substance that Emma Jacqueline Lambert, born in Colorado February 19, 1930, and Joyce Janith White, also born in that State May 3, 1934, were at the time of the filing of said petition in the care and custody of their mother, Marie Lambert, now the plaintiff in error, residing near Buffalo, Wyoming, in Johnson County, Wyoming; that the petitioner is the grandmother of these children; that the children have no suitable place of abode and are surrounded by vicious, corrupt and immoral influences; that petitioner is able to provide a good and moral home for these children, and, therefore, desires to be appointed their guardian and awarded their custody; that if this can not be done that the court appoint as guardian of and award the custody of said minors to some association actively engaged in securing homes for destitute children; that it is essential to the health, safety and welfare of said minor children that their custody be awarded to some suitable guardian. August 20, 1935, upon an order made by the Court Commissioner, the sheriff of Johnson County was directed to take possession of the children and retain them subject to the orders of the court, and this was shortly thereafter done.

Subsequently, upon due notice to the parties interested, the matter was heard by the district court aforesaid, the Honorable James H. Burgess presiding, and on November 26, 1935, an order was made removing the children from the custody of their mother and committing them to the "guardianship, care and custody of the said Emma Place, the petitioner herein, until further order" of the court.

The children remained in the care of Mrs. Place until about December 24, 1935, at which time their mother advised Judge Burgess that if she were allowed to have their custody returned to her she would leave the home where she was then living, take the children to the State of Colorado and go with them herself; whereupon the children were again placed in her care.

On September 8, 1936, another verified petition was filed by Mrs. Place. It set forth the facts relative to the previous award of custody of said children and their return to their mother upon her representation to the court that she would provide a suitable home for them; that the children were on the date last above given in the care of their mother, who was then living on a ranch near Buffalo, Wyoming; that petitioner fears for the welfare and safety of the children; that it "is essential to the health, safety and welfare of said minor children that they be taken from the custody of their mother and awarded to some suitable guardian, and your petitioner respectfully requests that she be given consideration in making said award as being the person best suited to care for said children."

The day the petition last above described was filed, the district judge issued another order directing the sheriff aforesaid to once more take possession of the children and to hold them subject to the court's direction. This order was obeyed the following day, September 9, 1936.

The matter was heard October 9, 1936, before the Honorable Harry P. Ilsley, Judge of the District Court of the Sixth Judicial District, sitting instead of Judge Burgess. The mother, Marie Lambert, appeared with counsel, and the County and Prosecuting Attorney of Johnson County appeared in behalf of Mrs. Place and the State of Wyoming. Evidence was submitted by both parties. Thereafter, by an order filed October 19, 1936, the court found "that said minor children have no suitable place of abode and that they are surrounded by vicious, corrupt and immoral influences and that they should be taken from the care and custody of their mother, the said Marie Lambert."

It was accordingly decreed that "the said Emma Jacqueline Lambert and Joyce Janith White be and they hereby are committed to the guardianship of the State Board of Charities and Reform of the State of Wyoming until further order of this Court, provided that said Board shall not allow said children to be adopted until a further hearing before this Court in order that the said Marie Lambert, mother of said children, may have an opportunity to improve her situation and establish herself under such conditions that she may prove to the satisfaction of the Court that she can and will provide a suitable home and place of abode for said children." It was also ordered that the former order assigning the temporary custody of these children to the grandmother, Emma Place, should be vacated and that Judge Ilsley should still retain jurisdiction over the matter.

It is for the purpose of determining whether the order thus made was proper that these proceedings in error were instituted.

It is assigned as error on behalf of Marie Lambert, the mother of the children, that the order entered as aforesaid is contrary to law and unsupported by sufficient evidence.

The contention is made for the plaintiff in error that the court was without jurisdiction...