Rogers v. Commonwealth

• Decision Date: 25 November 1940
• Citation: 11 S.E.2d 584
• Court: Virginia Supreme Court
• Parties: ROGERS. v. COMMONWEALTH.

11 S.E.2d 584

ROGERS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 25, 1940.

Appeal from Circuit Court of City of Norfolk; Allan R. Hanckel, Judge.

Proceeding by the Commonwealth of Virginia against Julia Rogers, involving the custody of four year old twins. From the decree, Julia Rogers appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Herman A. Sacks, of Norfolk, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Joseph L. Kelly, Jr., Asst. Atty. Gen., for the Commonwealth.

HUDGINS, Justice.

The lower court awarded the custody of twins, four years of age, to the Children's Bureau of the city of Norfolk. Julia Rogers, contending that she is entitled to the care and custody of these infants, prosecutes this appeal. She assigns three errors to the ruling of the trial court: (1) That the children were not "neglected and dependent"; (2) that the uncontradicted evidence discloses that her right to the custody of the children is superior to the right of the Commonwealth; and (3) that no court in Virginia has jurisdiction to determine the issue presented.

The first question to be determined is whether the infants are "dependent". or "neglected" children within the purview of chapter 78, § 1905 et seq., of the Code.

Code, section 1906, treats delinquent, dependent or neglected children in the disjunctive and not in the conjunctive, as stated in appellant's brief. Among the seven definitions given to the words "neglected child" is, "a child * * * who is found living in a house of ill fame orwith vicious or disreputable persons." The last paragraph of this section begins: "All delinquent, dependent or neglected children, as defined in this chapter, shall be considered * * * wards of the State and in need of care and protection * * *"

This action was instituted by a warrant issued on September 11, 1939. The officer who served the warrant stated that he found the children in a house of ill fame conducted by Elsie Morse. He saw women walking around in a semi-nude condition. The two little girls were dirty and no attention seems to have been paid to them. Elsie Morse is a notorious character in Norfolk and vicinity, as the police record shows that she has been arrested on various charges 68 times within the past fifteen years. It was stated that she had operated a chain of houses of ill fame during that period. It is difficult to conceive of more convincing evidence on the question of whether or not the children were "neglected" within the meaning of the statute quoted.

Consideration of the second assignment of error requires a more detailed study of the evidence. It appears that in 1935 one Anne Whitaker, an inmate of a house of prostitution conducted by Elsie Zick Morse, gave birth to the two infants. Elsie Morse paid her hospital expenses and a local doctor for his attention to her during confinement. Several witnesses in attendance upon the young mother stated that she did not care for her babies and that Elsie Morse, with her consent, removed them from the hospital within three days from the date of birth.

When the babies were three months old, Elsie Morse was charged with violation of the Federal narcotic law and, later, was sentenced to three years' confinement in the Federal penitentiary at Alderson, West Virginia. Before beginning to serve this sentence she "contacted Mrs. Julia Rogers, of Asheville, North Carolina, for the purpose of turning said children over to her." At this time Mrs. Rogers was informed that the children were the issue of Elsie Morse and Albert May, a son of Mrs. Rogers and a former husband of Elsie Morse. Mrs. Rogers took the children to Asheville, North Carolina, where they remained until sometime in 1939, when, as Mrs. Rogers testified, she brought the children to Norfolk, Virginia, and left them with Elsie Morse for a short stay while she visited her sick daughter in Richmond, Virginia. While the children were on this visit to Elsie Morse, their mother, Anne Whitaker, caused the warrant in this case to be issued.

Mrs. Rogers also stated that she was devoted to the infants, and that during the period--approximately three and one-half years--they were in her care in Asheville, North Carolina, she had spent approximately $1,500 in medical expenses and maintenance costs for them. Mrs. Rogers claims that she did not know the children were not her own grandchildren until that fact was brought out in the trial before the juvenile and domestic relations court of the city of Norfolk. Notwithstanding this fact, she contends that she loves them as though they were her own flesh and blood, and that she and her husband are well able and willing to properly maintain, support and educate them. Mrs. Rogers promised to make ample provision for them in case of her death if their custody should be awarded to her. She claimed to be ignorant of the character and reputation of her daughter-in-law, Elsie Morse, and that, while staying with her in Norfolk, she observed nothing improper in her conduct.

The evidence for the Commonwealth shows that Anne Whitaker had reformed and was living in a respectable neighborhood; that she had made several inquiries about the children; and that, when she ascertained that they were staying in Norfolk in a house of ill fame, she made a formal complaint and caused the infants to be brought before the juvenile and domestic relations court of the city of Norfolk. The judge of the domestic relations court awarded the custody of the infants to their mother. On appeal, Mrs. Elvira M. Wain-wright, the...