Moss v. Vest

• Decision Date: 12 October 1953
• Docket Number: No. 7987,7987
• Citation: 262 P.2d 116,74 Idaho 328
• Parties: MOSS v. VEST et al.
• Court: Idaho Supreme Court

Page 116

262 P.2d 116

74 Idaho 328

MOSS v. VEST et al.

No. 7987.

Supreme Court of Idaho.

Oct. 12, 1953

P. A. McDermott, Pocatello, for appellant.

Albaugh, Bloem, Barnard & Smith, Idaho Falls, for respondents.

THOMAS, Justice.

The petitioner, Nina Moss, instituted habeas corpus proceedings to obtain the custody of Gary Lee Moss, her minor son, from Farrell Vest and Joyce Vest, husband and wife, respondents.

At the conclusion of the hearing the court found that petitioner had neglected and failed to properly care for, and had abandoned and deserted her minor son on October 25, 1951, and had given custody to his maternal grandmother, Fay Baker, who had thereafter and on November 21, 1951, with the consent of William E. Baker, the maternal grandfather, delivered the custody of said minor child to respondents. The court further found that petitioner was unfit by reason of neglect, indifference to the welfare of said child, and immoral conduct, to exercise her natural rights of custody over him, and decreed that said child be remanded to the custody of respondents.

Petitioner urges on appeal that the evidence is insufficient to sustain a finding of abandonment and desertion, or that she was an unfit mother to have the custody of the child, or that she had neglected and failed to properly care for him.

While the evidence adduced at the hearing was rather voluminous and in some respects in sharp conflict, it is deemed appropriate, in so far as it is material, to relate it in substantial detail.

Petitioner, Nina Moss, is the natural mother of Gary Lee Moss who was born at Kirkland, Washington, on July 20, 1951, to petitioner and Lonnie Moss who was at that time her husband. While they were living in Pocatello, Idaho, and on April 16, 1950, their daughter, Christina Fay, was born.

Soon after the birth of Gary Lee on July 20, 1951, petitioner and her husband who lived at Redmond, Washington, had trouble and apparently were unable to get along; this was due in part to the lack of employment of Mr. Moss and the absence of adequate funds to provide the necessities of life for the family and apparently the excessive indulgence in intoxicating liquors. Somewhere on or about the 13th of October, 1951, petitioner and her husband separated, she remaining with her two children at the motor court where they had all lived and the husband moving to a hotel in the town. Thereafter and on or near October 25, 1951, the father of the minor child, at the request of the mother, communicated their marital difficulties by telephone to the maternal grandparents at Pocatello, Idaho. The grandmother immediately went to Redmond, Washington, where she remained a few days and, on leaving to return to her home in Pocatello, took both minor children with her; this action on her part was known to both the mother and father of the children who voiced no disapproval; however, the petitioner did not return to Pocatello with her mother, stating she was nervous and upset and wanted to be alone for awhile. Thereafter, and in the course of about a week, petitioner left Redmond, Washington, for San Francisco, California, and enroute and while at the railroad station in Portland, Oregon, called her mother to make inquiry as to the children and then proceeded to California. From the time she arrived in California which would be on or near November 1, 1951, until late in the month of February, 1952, she had not been in contact with her parents either through the mails or by telephone and they did not know where she was.

After the maternal grandmother returned to Pocatello with the children she became ill and with the consent of her husband, the maternal grandfather of Gary Lee, delivered his custody to the respondents who resided in Idaho Falls, Idaho. Apparently from the record it would indicate that the grandparents and respondents were looking forward to respondents effectuating adotion of the child; this tentative arrangement was without the knowledge or consent of petitioner.

On February 28, 1952, an information was filed against petitioner while she was residing in San Francisco, charging her with a felony, that is, a violation of Section 288a of the Penal Code of California. She was neither tried nor convicted of such offense; on March 24, 1952, petitioner entered a plea of guilty to an included offense, a misdemeanor under the Municipal Police Code of San Francisco which prohibited engaging in, or soliciting others to engage in or being a party to any lewd, indecent or obscene act or conduct; on the same day she was placed on parole to her mother for one year and the parole was in full force and effect at the time of the hearing. During the time she was in jail in San Francisco, but not earlier, she and her parents corresponded two or three times a week. During this time she mailed a little picture of the boy to her parents and they mailed pictures of both children to her.

Mrs. Baker first found out her daughter was in jail about March 9, 1952, and on or about the 27th of March of the same year she went down and brought her back to her parents' home in Pocatello, Idaho, where she has at all times since resided.

Petitioner found out for the first time when her mother came to San Francisco that her son had been placed in the home of third parties but her mother did not then nor at any time thereafter, even though petitioner repeatedly made inquiry, advise her with whom her baby had been placed; in this respect it appears her mother was following the advice of another attorney who was handling the pending adoption proceedings that it would be best if Nina did not know who had custody of the child while the adoption proceedings were pending.

Soon after petitioner returned to Pocatello to live with her parents and her little daughter she enrolled in nightschool for the purpose of taking a business course; she continued her schooling for some time but did not complete the course; she was for a greater portion of the time prior to these proceedings employed in several places of business in Pocatello. The record does not disclose with any certainty that her work while so employed was not satisfactory; however, it appears that she lost at least one job because respondents had visited her employer and cast a doubt upon her character. At the time of the hearing she was not employed.

Sometime after her return to Pocatello, the time being uncertain, she filed an action for divorce; in the action she employed the attorney who was also representing respondents in the adoption proceedings; she was granted a divorce on September 9, 1952, upon substituted service and the court awarded her custody of her two children as against the father whose whereabouts were unknown and who had never made any inquiry about the children; a few days before the decree was entered, through an inadvertent statement made by her attorney, she learned for the first time the names of the parties who had her child. Thereafter, and on the 18th day of September, 1952, the petition for writ of habeas corpus was filed and the hearing thereon was commenced October 3, 1952, and continued to January 12, 1953, when the hearing was completed.

As a general rule, parents have a natural and legal right to the custody of their minor children. When such relationship is established a prima facie case has been made and the burden is then upon the other party to overcome such prima facie case by showing that the natural parent or parents have forfeited such right, or at least that such parent or parents are not fit and proper persons to have custody. Schiller v. Douglas, 48 Idaho 803, 285 P. 1021; Jain v. Priest, 30 Idaho 273, 164 P. 364; In re Crocheron's Estate, 16 Idaho 441, 101 P. 741, 33 L.R.A.,N.S., 868; Andrino v. Yates, 12 Idaho 618, 87 P. 787; Sec. 15-1805, I.C.; 67 C.J.S., Parent and Child, §§ 11(a), 11(c), and 13(f), pp. 634, 640, and 673.

The trial court found that petitioner abandoned and deserted her minor son on October 25, 1951, by giving up her custody to the maternal grandmother. With this finding, under all the facts and circumstances, we cannot agree. The facts will not demonstrate nor support abandonment or desertion. It was only natural and for the best interests of the minor children for the mother, in her hours of extreme trouble, to look to her own parents for aid and assistance with respect to the welfare of her children. Both she and her husband were very young; she was immature, unstable and emotionally upset; she was a victim of youth, inexperience and economic hardships; their marital difficulties after the birth of the little boy intensified; the father had no regular and permanent employment; he indulged excessively in the use of intoxicating liquor; he failed to properly support his family; they separated, contemplating a divorce and he moved to a hotel, leaving this young mother with two babies and no funds to provide them with even the bare necessities. Certainly a mother whose husband had left her under such circumstances and had remarked to the material grandmother that he did not give a damn what was done with the children, did not desert and abandon her children when she placed them in the care of her own parents whom she knew had a good home and were able to properly provide for them. Her decision in this respect was natural and proper; she committed no wrong when she placed them with her parents who had no authority to relinquish her parental claim to anyone.

That she did not relinquish the children nor give them up with the intent of never again resuming or claiming her parental right and performing her parental duty toward them is forciby demonstrated by her actions and conduct after she returned to Pocatello; while it is true that she did not make inquiry about them for a period of some four months while she was in California, nor give...