Lowe v. Grasty

• Decision Date: 27 November 1961
• Docket Number: No. 5338,5338
• Citation: 122 S.E.2d 867,203 Va. 168
• Court: Virginia Supreme Court
• Parties: ANNA FRANCES JONES LOWE v. TAYLOR P. GRASTY, ET AL. Record

Page 867

122 S.E.2d 867

203 Va. 168

ANNA FRANCES JONES LOWE v. TAYLOR P. GRASTY, ET AL.

Record No. 5338.

Supreme Court of Appeals of Virginia

November 27, 1961.

Vance M. Fry (Higginbotham & Fry, on brief), for the appellant.

R. D. McIlwaine, III, Assistant Attorney General (Frederick T. Gray, Attorney General, on brief), for the appellees.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

On August 15, 1960, the appellant, Anna Frances Jones Lowe, mother of Michael Daniel Jones, born July 28, 1955, filed in the Circuit Court of Orange county a petition for a writ of habeas corpus to obtain the custody of her son, naming as respondents Taylor P. Grasty and the other two members of the Orange County Department of Public Welfare, together with Ruth C. Potts, Superintendent of said department.

The petitioner alleged that respondents had custody of her son under an order of said court entered on April 5, 1960, which was invalid and void in that it was entered on an appeal from an order of the Juvenile and Domestic Relations Court of Orange county entered on February 18, 1960, which was also void. The petitioner further alleged that the continued custody of the child by respondents was contrary to its best interests, and that its custody should now be restored to her as its mother and surviving parent.

The respondents filed their answer in which they denied the allegations of the petition and alleged that on October 8, 1959, Ruth C. Potts, Superintendent as aforesaid, had petitioned the Juvenile and Domestic Relations Court for custody of the child, who was dependent, neglected and without parental care, his mother and sole surviving parent being then in jail for drunkenness, and that after a hearing the court had entered an order on October 8, 1959, committing the child to the County Department of Public Welfare. A certified copy of the order was filed with the answer.

The answer further alleged that on January 28, 1960, the said Ruth C. Potts, Superintendent, again petitioned the Juvenile and Domestic Relations Court that the County Board of Public Welfare be given the privilege of placing the child in a suitable home for adoption, and that on February 18, 1960, after hearing evidence, the Juvenile and Domestic Relations Court entered an order giving to the County Board of Public Welfare, in addition to the custody which it already had, the right to place the child for adoption; that the mother appealed from that order to the Circuit Court, which heard evidence and then entered the order of April 5, 1960, confirming the custody of the infant in the Orange County Board of Public Welfare and granting to the Board the right to place said child for adoption and terminating the parental rights of the mother; and that subsequently thereto the child was placed in a very fine home in Virginia where he is happy and improved and should further improve and develop. Respondents prayed that the writ of habeas corpus be not issued.

On her petition for the writ the petitioner introduced in the Circuit Court on September 2, 1960, a number of witnesses in an effort to prove that she had reformed her habits, stopped drinking, rehabilitated herself, had married again and had a suitable home for her son where he would have a proper environment and comfortable surroundings, and that she is a suitable person now to have his custody and control.

From this testimony, along with other evidence in the record, it appears that at the time of the order of October 8, 1959, the mother was an inebriate and her counsel concedes that at that time and to the time of the order of April 5, 1960, it was not proper for her to have custody and control of the child.

The petitioner had been married three times. Her first husband was killed and her second, Reginald Jones, was the father of this child. While she and Jones lived together from 1952 until his death in 1959, they did not marry until January, 1959, more than three years after this boy was born. At the time of the order of October 8, 1959, she was drinking heavily and apparently she continued in that habit until April 6, the day after the April 5 order of the Circuit Court, but she testified that since that date she had never taken another drink. Sometime prior to April 5, Jones was burned to death in a fire and on July 5, 1960, the petitioner married one Gurney Lowe, who owned and lived in his home in the city of Washington. Lowe was then sixty-six years of age and the petitioner was thirty-five. Lowe testified that he was a contractor with a net income of about $6,000 a year. This was also his third marriage. He also had had a drinking problem but had stopped some months before he and petitioner were married, and since their marriage both of them were attending church and their home was well kept and according to the evidence a suitable home and environment for the child. A married sister of the petitioner, employed as a secretary in Washington, testified that she felt it was proper for the child to be taken away from the petitioner at the time that was done, but she believed now that her change was permanent and that she was a fit person to have custody of the child. She conceded that if her sister should return to her former behavior it would be a bad thing for the child but she felt that she ought to be given a chance.

At the conclusion of the testimony offered by the petitioner the trial judge stated that he had made up his mind and saw no need to proceed with further evidence. He expressed the hope that the mother's reformation was genuine but said 'it is too short a time for the Court in considering the best welfare of this child to adopt that as a permanent reformation, and the Court would certainly have to have a longer period of time for the mother to show and to demonstrate her suitability to have the custody of this son.' The court accordingly found that the petitioner was not entitled 'at this time' to the custody of the child and that the writ should be denied. Later the same day the petitioner filed a written motion that the case be continued to the November term so she might introduce additional evidence as to the permanency of her rehabilitation. It was urged in support of the motion that adoption proceedings might become final and petitioner's custody of the child forever lost. The motion was refused and the order appealed from was entered on September 28, 1960, denying the writ and dismissing the petition.

The order of October 8, 1959, entered by the Juvenile and Domestic Relations Court committed the child to the Orange County Department of Public Welfare 'to be received, detained, managed and controlled in the manner prescribed by law.'

The petitioner does not attack that order. She concedes its validity and its propriety. Under that order the custody of this child was duly lodged in the local Department of Welfare, has not been changed and still remains there. In that situation it was possible for the mother to regain the custody of her child if and when she established her fitness for that responsibility.

Some three months later, however, the County Superintendent of Public Welfare petitioned the same court for the privilege of placing the child in a suitable home for adoption, and that was granted by the order of February 18, 1960, which recited that the mother was not present at the hearing 'after receiving official notice' of the time, and which adjudicated that the child be 'permanently committed' to the County Department of Public Welfare, which was also granted 'full adoption privileges'.

While the main contentions of the appellant under her assignments of error are that the order of the Juvenile Court of February 18, 1960, is void because of the failure to give the notice required by § 16.1-166 of the Code, and the failure to appoint a guardian ad litem for the infant as required by § 16.1-173, there is a defect in the...